Tats not fair…Who really owns your tattoo?

Solid Oak Sketches, a small agency that represents tattoo artists, is suing Take-Two Interactive and Visual Concepts, the digital games companies behind the NBA2K video game.

Solid Oak Sketches claims the companies have infringed their copyright  by featuring eight of their tattoos in its basketball video games since at least 2013, with one of the more notable instances of infringement featuring the player LeBron on the cover of NBA 2K14, with his tattoos in clear view.

Solid Oak registered copyrights in respect of the relevant tattoo designs in June and July of 2015.  Solid Oak claims it offered the licence the right to feature the tattoo works to Take Two for US$1.14 million, but Take-Two went ahead and released the game without a licence.  Solid Oak then instituted proceedings, and, if successful if may be granted a permanent injunction, preventing Take-Two from selling any more copies of the game and seek damages per violation.

If you create an original tattoo or work of body art, you are the first copyright owner of that work, which means the bearer of the tattoo may not necessarily be the owner of the work.  In Australia, there have not been any court cases on copyright in tattoos. However there have been cases in the States regarding this issue.

For example, S. Victor Whitmill unsuccessfully brought a case against Warner Bros. Entertainment, Inc.   Whitmill is the tattoo artist behind Mike Tyson’s distinctive facial tattoo.  In Warner Bros’ movie The Hangover 2, a character wakes up bearing a tattoo that resembles the Mike Tyson tattoo.  Whitmill sought court orders to stop Warner Bros. promoting and showing ‘Hangover II’ featuring the tattoo.  However, the Court denied the motion and the matter was settled out of Court.

That hasn’t deterred Solid Oak from bringing its claim – we will keep you posted.