Virtual Reality Meets Body Ink

The video game industry has swelled into a $20 billion market in the United States alone.[1] With industry growth, game developers continue to push the limits of digital graphics, inching closer every year to on-screen renderings that bear an uncanny resemblance to the real world.[2]

This collision course into the uncanny valley, however, may have hit its first of many unexpected obstacles: the also-surging tattoo industry.[3]

Sports games are the third-most popular video game genre in the United States, where four of the top twenty selling games last year were sports games that featured the licensed likenesses of real-life professional athletes.[4] Developers of these titles, including software giant Electronic Arts (EA), now use an array of custom-built 3-D modeling technology to capture every contour of athletes’ bodies, as well as their movements on the field. But due to a wave of recent lawsuits,[5] companies like EA have held back from capturing some athletes’ most unique physical features: their body art.  Or as video game companies worry, the body art whose creation and intellectual property rights belong to the tattoo artists themselves.

When you enter a tattoo parlor, you may leave with body art that can last the rest of your lifetime—but unless conveyed otherwise, the intellectual property rights to the artwork remain with the tattoo artist.  This argument served as the basis of lawsuits against entertainment and gaming companies such as Warner Brothers, Nike, EA, and THQ—although all of the aforementioned cases settled or were dismissed before delivering a binding legal opinion on the copyright interests of tattoo artists.

Nevertheless, these suits were threatening enough that EA chose not to include tattoos in several newest editions of its sports titles.[6] In EA’s flagship video game, NFL Madden 15, tattoos will appear in the series for the first time, for the digital avatar of only one athlete: San Francisco 49ers quarterback Colin Kaepernick, who acquired a waiver from his tattoo artists, allowing his famed bicep tattoos to appear in virtual reality.

Precautions aside, are tattoos actually copyright protected? Out of the recent tattoo suits, two courts have come close, but did not definitively declare that body art can be copyright protected. In Tattoo Art, Inc. v. TAT Int’l LLC[7], two companies in the tattoo industry did not dispute that tattoos were a copyright-protected medium, but the case the dealt directly with tattoo “flashes,” stencils of tattoo art that are later applied to a person’s skin, not the body art affixed on patrons themselves. Since both parties asserted that tattoos were copyright-protected, the court made no formal commentary on the copyright protections of tattoos. Meanwhile, Escobedo v. THQ, Inc.,[8] filed originally in Arizona federal court but later moved to Delaware bankruptcy court[9] due to video game developer THQ’s Chapter 11 bankruptcy filing, arose after THQ depicted UFC Fighter Carlos Condit’s real-life lion tattoo in its “UFC Undisputed 2010” video game.  The tattoo artist, Christopher Escobedo, originally sought $4 million in damages, but the U.S. Bankruptcy Court for the District of Delaware reduced the potential value of the claim to $22,500.  THQ and Escobedo eventually settled out of court.

First, tattoos appear to meet the basic statutory requirements for a copyrighted work. 17 U.S.C.A. § 102 broadly provides copyright protections for “original” works of authorship “fixed in any tangible medium of expression.” Requirements for originality are set at a low threshold,[10] while tattoo art at its finest can be intricate, creative, and expressive works. If the medium on which the work is fixed is the human body, it almost certainly meets the “permanent or stable” requirements under the Copyright Act.[11] Defining the copyrighted work itself becomes more complicated when the tattoo originally existed on a flash or from another preexisting design (where the subsequent body art may be better characterized as a derivative work)[12], but this issue will depend on the specific tattoo, the client, and the corresponding circumstances.

But even if tattoos are de facto copyrighted works, it may not practically be feasible for them to receive all typical copyright protections. Without a definitive appellate court opinion on copyright protections in the tattoo industry, the topic has become a popular choice for legal scholarship.[13] Giving the full arsenal of copyright protections to tattoos would create a troubling (and unexpected) tension between the rights of artists and the rights of individuals to control their own bodies.[14] Furthermore, the Visual Artists Rights Act of 1990 (VARA)[15] prohibits the distortion, modification, or mutilation of a copyrighted work that would be prejudicial to an artist’s reputation. If applied to tattoos, VARA could prevent an individual from modifying his own body (with respect to the tattoo).[16]

To avoid these absurd consequences, tattoos may need to carry a nonexclusive implied license between artist and client, which has been described in legal scholarship as follows:

By using the human body as a medium, however, a tattoo artist cannot reasonably expect to control all public displays of his or her works. When a tattoo artist applies a tattoo to an individual, the artist knows that the recipient will likely be seen in public, and will likely during his or her lifetime be photographed and/or videotaped–all of which involve copying the tattoo, implicating the rights of reproduction and public display. This is especially true if the recipient is a celebrity.[17]

The First Circuit held that an implied license may exist when 1) the purported licensee requests the creation of the work, 2) the copyright owner creates the work and delivers it to the licensee, and 3) the copyright owner intends the licensee to use the work as the licensee does.[18]

A relationship between artist and client may meet these requirements, although it remains to be seen whether such relationship would apply in the context of a video game. Furthermore, the possibility of this license has yet to put video game developers at ease.

 

 

[1] 2014 Essential Facts About The Computer And Video Game Industry 13, http://www.theesa.com/facts/pdfs/ESA_EF_2014.pdf.

[2] Jon Fingas, The new Unreal Engine will bring eerily realistic skin to your games, Engadget (Oct. 6, 2014, 3:10 AM), http://www.engadget.com/2014/10/06/unreal-engine-4-5/.

[3] One in Five U.S. Adults Now Has a Tattoo, Harris Interactive (Feb. 23, 2012), http://www.harrisinteractive.com/NewsRoom/HarrisPolls/tabid/447/mid/1508/articleId/970/ctl/ReadCustom%20Default/Default.aspx (“Currently one in five U.S. adults has at least one tattoo (21%) which is up from the 16% and 14% who reported having a tattoo when this question was asked in 2003 and 2008, respectively.”).

[4] 2014 Essential Facts About The Computer And Video Game Industry 10-11, http://www.theesa.com/facts/pdfs/ESA_EF_2014.pdf (including Madden NFL 25, NBA 2K14, FIFA 14, and NBA 2K13).

[5] See, e.g., Whitmill v. Warner Bros. Entm’t Inc., No. 4:11-CV-752 (E.D. Mo. filed Apr. 25, 2011); Reed v. Nike Inc., Wallace, and Weiden + Kennedy, No. CV 05 198 (D. Or. filed February 10, 2005); Escobedo v. THQ, Inc., No. 2:12CV02470 (D. AZ. filed Nov. 16, 2012); Allen v. Electronic Arts, Inc. and Ricky Williams, No. 5:12-V-3172 (W.D. La. filed Dec. 31, 2012).

[6] Jacob Gershman, Athletes’ Tattoo Artists File Copyright Suits, Leaving Indelible Mark, Wall Street Journal, June 16, 2014,  http://online.wsj.com/articles/athletes-tattoo-artists-want-more-skin-in-the-game-1402972074.

[7] 498 Fed. App’x. 341 (4th Cir. Va. 2012).

[8] No. 2:12CV02470 (D. AZ. filed Nov. 16, 2012).

[9] In re: THQ, Inc., et al., No. 12-13398 (Bankr. D. Del. filed Dec. 19, 2012).

[10] See Feist Publications, Inc. v. Rural Tel. Serv. Co., Inc., 499 U.S. 340, 345 (1991) (“Originality does not signify novelty; a work may be original even though it closely resembles other works so long as the similarity is fortuitous, not the result of copying.”).

[11] 17 U.S.C.A. § 101 (“A work is ‘fixed’ in a tangible medium of expression when its embodiment in a copy or phonorecord, by or under the authority of the author, is sufficiently permanent or stable to permit it to be perceived, reproduced, or otherwise communicated for a period of more than transitory duration. A work consisting of sounds, images, or both, that are being transmitted, is ‘fixed’ for purposes of this title if a fixation of the work is being made simultaneously with its transmission.”)

[12] 17 U.S.C.A. § 101 (“A ‘derivative work’ is a work based upon one or more preexisting works, such as a translation, musical arrangement, dramatization, fictionalization, motion picture version, sound recording, art reproduction, abridgment, condensation, or any other form in which a work may be recast, transformed, or adapted. A work consisting of editorial revisions, annotations, elaborations, or other modifications which, as a whole, represent an original work of authorship, is a ‘derivative work.’”).

[13] See, e.g., Christopher A. Harkins, Tattoos and Copyright Infringement: Celebrities, Marketers, and Businesses Beware of the Ink, 10 Lewis & Clark Law Review 313 (2006); Timothy C. Bradley, The Copyright Implications of Tattoos, 29 Entertainment and Sports Lawyer 1 (2011); Thomas F. Cotter and Angela M. Mirabole, Written on the Body: Intellectual Property Rights in Tattoos, Makeup, and Other Body Art, 10 UCLA Entertainment Law Review 97 (2003).

[14] See Meredith Hatic, Who Owns Your Body Art?: The Copyright and Constitutional Implications of Tattoos, 23 Fordham Intellectual Property Media & Entertainment Law Journal 396, 398 (2012).

[15] 17 U.S.C. § 106A.

[16]See Christine Lesicko, Tattoos As Visual Art: How Body Art Fits into the Visual Artists Rights Act, IDEA 39 (2013).

[17] Ann Bartow, A Restatement of Copyright Law as More Independent and Stable Treatise, 79 Brooklyn Law Review 457, 495 (2014).

[18] Estate of Hevia v. Portrio Corp., 602 F.3d 34, 41 (1st Cir. 2010).

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