Can a work of art be copyrighted when its canvas is a living human body? And do things change if that body belongs to an NBA superstar who gets photographed nearly every day?
These are the questions at the heart of a rather unusual legal dispute between a Delaware-based tattoo company and the makers of NBA 2K16a basketball simulation video game released in September as part of the popular NBA 2K franchise.
According to Reuters, Solid Oak Sketches LLC filed a copyright infringement lawsuit on Monday in New York federal court, saying that eight of its tattoo designs had been used in the game without permission.
The tattoos, all digitally rendered within the game to reflect real tattoos seen on NBA players, include Kobe Bryant's crown with butterflies, DeAndre Jordan's shoulder scroll, and four separate pieces belonging to Lebron "King" James.
"Some of these tattoos, in particular the ones on LeBron James and Kobe Bryant, have been prominently featured on the cover photos and advertising," reads a letter sent to NBA 2K16 distributor Take-Two Interactive in July by lawyers representing Solid Oak.
"As you probably know, tattoos are original works of art entitled to full protection of the copyright laws," the letter, which was published this week along with other court documents, continues. "Your company has been exercising my clients' exclusive rights in their copyrights without their permission, and thus your company has been engaging in ongoing acts of copyright infringement."
Most works of art are indeed protected under copyright law, meaning that they can't be reproduced for commercial purposes without approval and a bill from the artist.
There are various nuanced exceptions – though in this case, there's no precedent for courts to follow.
Similar high-profile lawsuits have popped up in the past (most infamously, the Hangover 2 legal battle between Warner Bros. and the artist who created Mike Tyson's face tattoo,) but they were all settled out of court.
"The issue of tattoo copyrightability has yet to be decided upon in court due to numerous settlements preventing a final judicial opinion," reads a portion of Solid Oak's official complaint. But, as it notes, "the copyrighted tattoo designs fit squarely within [the] statutory definition of 'pictorial, graphic, and sculptural works.' Many legal authorities on copyright have offered support for this position."
Court documents published by Ars Technica show that Solid Oak's tattoo artists, all of whom hold copyrights over the designs in question, had initially been willing to license the tattoos to Take-Two for $1.1 million.
The lawsuit was filed against Take-Two, as well as developer Visual Concepts and publisher 2K Sports after these negotiations fell through.
As it stands now, the companies are being asked to stop using the designs completely and pay as high as $150,000 per infringement.
"It's clear that they knew that this was something that was to be negotiated," said lawyer Darren Heitner, whose firm is co-representing the plaintiff, to ESPN.
Heitner also noted that, without waivers, a tattoo artist is assumed to be the owner of his or her work, even when it is put on an athlete's body.
James, for his part, finds the situation puzzling.
The Cleveland Cavaliers star wasn't even aware of the lawsuit when he was asked for comment by a local news outlet on Wednesday.
"So even if I designed it (the tattoo), the company owns it?" James asked, before joking "I'm going to copyright my lips."