Are Tattoos Protected by Copyright?
Yes, tattoos can be protected by copyright.
Copyright can protect pictorial and graphic works so long as they are fixed in a physical object and display originality. Since tattoos are, by definition, fixed—Merriam Webster defines a tattoo as “an indelible mark or figure fixed upon the body by insertion of pigment under the skin or by the production of scars“—the threshold question in determining if a particular tattoo is protected by copyright is whether the tattoo is sufficiently original. In the context of copyright, originality doesn’t necessarily mean “novel.” Instead, it requires that the expression be original to the author (i.e. it cannot be copied from someone else), and it must possess at least a minimal amount of creativity.
Tattoos in Video Games
This issue becomes complicated in the context of the depictions of tattoos in video games. In 2012, Christopher Escobedo, a tattoo artist based in Arizona, sued THQ, Inc., the makers of the video game UFC Undisputed 2010, for its depiction of a tattoo that Escobedo designed and tattooed on the torso of Carlos Condit—who was at the time the “interim Ultimate Fighting Championship (“UFC”) Welterweight Champion.” The case was ultimately settled out of court.
In 2016, tattoo company Solid Oak Sketches sued Take-Two Interactive for copyright infringement based on the company’s depiction of Lebron James’ tattoos in the game and cover art for the game. In March 2020, a federal judge ruled that Take-Two Interactive could not be sued for copyright infringement over the use of Lebron James’ and other players’ tattoos in its NBA 2K video game. The court reasoned that because tattoo artists know that the tattoos of famous athletes are likely to be displayed in public, they necessarily granted the players a non-exclusive license to use the tattoo as part of their likeness. In addition, the court found the use to be de minimis and transformative fair use.
Additionally, in a similar case filed in 2020 centered on the use of wrestlers’ tattoos in the WWE 2K games, an Illinois federal judge sided with a tattoo artist. During its analysis, the court addressed de minimis use, fair use, and whether the game had an implied license to use the work. The court rejected the video game maker’s motion for summary judgment, finding that there were triable issues of fact related to its transformative fair use defense.