Can an artist sue a virtual tattoo? It’s complicated

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Tattoos are an integral part of the images of many athletes, from unique designs such as Mike Tyson’s facial tattoo to the extensive collections of Kenyon Martin or David Beckham. But when those images are translated into video game form, some artists aren’t happy.

In recent years, the creators of two major sports titles have filed lengthy lawsuits over their right to use tattoos on players’ avatars without paying compensation to the person behind the tattoo. Late last week, one of those suits went to a jury, which ended with a payout to the artist. It’s not a straight win for either side, but it does provide a fascinating example of how complicated tattoos and copyrights really are.

The athlete here is pro wrestler Randy Orton, a long-running character in 2K Games’ WWE series. In 2018, Orton’s tattoo artist Catherine Alexander sued 2K parent company Take-Two Interactive for portraying five distinctive tattoos on Orton’s avatar. Take-Two argued that the avatar constituted fair use of the tattoos, but after four years, a jury decided fair use claim denied and awarded Alexander $3,750 in compensation.

Without an implied license for your tattoo, taking a photo can be tricky

The outcome is strikingly different from a similar case involving LeBron James and the… NBA 2K spell. in 2020, Take-Two beat a pack by Solid Oak Sketches, a tattoo licensing company (yes, this exists) that owned the rights to James’ ink. A judge in New York found that the tattoos only played a little bit (“de minimus” in legal terms) role in NBA 2K. In addition, James had an implied license to have Take-Two make an effigy of him, including his tattoos. The decision seemingly raised questions about how concerned game studios should be about tattoo licensing — an issue that has led some developers to omit player tattoos from games.

As a Shame story from 2017 explains, tattoos are copyrighted: they are a work of art on a solid medium, even if that medium is someone’s skin. But it’s generally accepted that getting a tattoo implicitly gives you some sort of license to show it; otherwise you might not even be able to pose for a photo without infringing copyright. After all, Orton’s tattoo artist has not sued WWE for regularly broadcasting a video copy of the art.

Tattoo suits often revolve around a specific question: whether the art is separated from the owner’s body. Warner Bros., for example, settled a case The hangover part II that saw a character wake up with a copy of Mike Tyson’s tattoo. Artists who denounce video games argue that the digital avatars are fundamentally different from taking a photo, something studios like Take-Two clearly dispute. In cases such as: WWE 2Kit’s also complicated by features like Create-A-Superstar, which allows players to mix and match elements of wrestlers to create a distinctive character – who, like the actor in The hangover part IImay not have that implied license.

So what does the WWE decision means? Not necessarily something monumental. A fine isn’t great for Take-Two, but $3,750 isn’t a very scary number for a major game studio or a very rewarding incentive for other artists to adopt Alexander’s strategy. The jury trial did not provide a detailed ruling that a judge could base in future cases on the way LeBron James’s case did.

But tattoo artists and avatar technology may soon collide in more places than sports games. Companies pushing “metaverse” social platforms are encouraging users, including superstar musicians and other entertainers, to create avatars that look exactly like this. For many people, that will include tattoos. That means eventually more courts will have to deal with the issue of who really owns an avatar’s ink — and so far the results have been far from cut and dried.