Video game makers can’t be sued for copyright infringement when they recreate tattoos on famous athletes’ virtual avatars.  

That was the decision handed down last week in a Manhattan federal court, when U.S. District Judge Laura Taylor Swain held that by applying a tattoo to a person’s body, the artist grants that person a non-exclusive license to use the tattoo as part of his or her likeness.  To hold otherwise, Judge Swain explained, would effectively render tattooed people “virtual slave[s]” to the artist.  

The dispute arose back in 2016, when a group of tattoo artists brought suit against Take-Two Interactive Software Inc., maker of the popular “NBA 2K” videogames.  The artists alleged that they owned copyrights in the tattoos they inked on superstars like LeBron James, Kobe Bryant, and others. By recreating those copyrighted works in videogames, Take-Two had violated the artists’ exclusive right of reproduction, among others, in their copyrighted works.

Take-Two defended itself on several grounds, the first of which was that tattoos aren’t even eligible for copyright protection.  For a work to be considered copyrightable, the Copyright Act requires it to be fixed in a tangible medium of expression, and the company cited Prof. Nimmer’s opinion that a person’s flesh is not intended to be that kind of medium. Take-Two also asserted a fair use defense, claiming essentially that the effect of including the tattoos in its videogames would not harm or have any effect on the “market” for the works––in other words, it wouldn’t deprive the artists of any income they would otherwise earn from the tattoos.  Finally, Take-Two argued that the artists gave the players an implied license to display their works, which was then transferred to Take-Two when the players agreed to allow the company to use their names, images, and likenesses in the development of the game.  

In her ruling, Judge Swain sided with Take-Two on every single defense.  She made the additional point that Take-Two’s use of the tattoos was de minimis anyway, and thus could not support a finding of copyright infringement.  Her decision joins the small but entertaining handful of decisions involving tattoo copyrights, which includes a case brought by Mike Tyson alleging that movie producers infringed his face tattoo then they put an identical copy of it on Ed Helms’ character in “The Hangover 2.”