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Tattoos, video games, and copyright

4. November 2022

By Eliany Pérez Barradas, Patents Paralegal.

For the last few years, the largest video game companies have been facing several copyright lawsuits. Surprisingly, this involves a large group of tattoo artists who claim that they did not permit the game-makers for the tattoos made on some celebrity athletes to be shown in their animations.

Copyright is the exclusive right granted to an owner/creator to use a work. According to current legislation, any creative illustration “fixed in a tangible medium” (in this case, the skin), including the ink of a tattoo, is subject to copyright law. Nevertheless, what is sometimes not taken into account is that the tattoos belong to the tattoo-maker, not the person who wears them.

One may think that the lawsuits filed in previous years by these tattoo artists are out of reach since, if the tattoo artists were right, we could not show them in photographs, television, or any other media. However, the difference with video games is that it is not a photo, it is a re-creation of the painting that was done with ink now digitally, and that is considered a felony.

Among the most relevant news that emerged on this topic was the lawsuit filed in 2013 against the developer and publisher Electronic Arts for the official cover of the NFL Street video game, which depicted former American soccer player Ricky Williams with some of his tattoos. Due to this news, it became known that of the 100 tattoos the company had recreated up to that moment, it only had a license for a few of them.

Another of the most relevant cases started in 2016, and after four long years, the ruling was handed down in March 2020. Solid Oake Sketches, one of the most prestigious tattoo studios in the United States, sued Take-Two Interactive and proposed to them a settlement of $1.14 million for the future use of the tattoos for which it holds the copyright. The video game company had recreated five tattoos of three different basketball players to which S.O.S. owns the rights.

The video game boom has opened up questions in legal areas, some of which are still under discussion. However, using these designs outside a legal copyright agreement is considered fraud.

Being an area of law that has been little explored, sports agents recommend that players enter into licensing agreements before being tattooed, thus avoiding the arduous task of negotiating with hundreds of tattoo artists for video game companies. They also recommend that athletes consider such details when licensing the right to license their image to third parties.

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