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Copyright Infringement and Tattoos

April 7, 2020, By

The US District Court for the Southern District of New York has just issued their summary judgement in a case surrounding alleged copyright infringement of NBA players tattoos.

As a brief summary, Solid Oak (the claimant) holds an exclusive copyright licence in the tattoos of some NBA players (LeBron James, Kenyon Martin and Eric Beldsoe to be exact) which it had acquired from the tattoo artist tattooed these players.

Take Two Interactive Software Inc (“Take-two”) created the game NBA 2K which included avatars of these players – which include their tattoos. For this game the players in question had granted Take-Two consent to use their likeness in this video game, so the issue at hand was simply whether the use of the tattoos amounted to copyright infringement.

In this case, the court considered the following:

1) Is the copyright infringement so negligible (in this case the tattoos on the avatars were very small) that the average person would not realise that they were the copyrighted work.

2) Was there an implied licence granted from the tattoo artist to the players to use the tattoos as part of their likeness, and therefore if the players had given Take Two permission to use their likeness it would include the tattoos.

3) Did the use of the tattoos in the video game fall under the exception to copyright infringement under the doctrine of fair use of the copyrighted work.

The court found in favour of Take-Two that the use of the tattoos did not constitute copyright infringement and that there was an implied licence granted by the tattoo artist so the players licence of their likeness to Take Two included the use of their tattoos. The case is interesting as it is a good example of the wide scope of copyright protection (as this would have been a different case if the tattoos were reproduced on their own).

In addition, although this is a US case, and in the UK we do not have statutory image rights like they do in the US, this case is useful as it shows the logical approach the court has taken to allow individuals to use their own image (inclusive of artist additions) and exploit it how they see fit.

Briffa are experts in all aspects of copyright law and practice, and can assist you with all copyright matters. Please contact us for a free consultation with one of our specialist lawyers on 020 7288 6003 or at [email protected].

 

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