In a complaint filed yesterday, Solid Oak Sketches, LLC alleges that Take-Two Interactive Software and other defendants infringed Solid Oak’s copyrights by prominently featuring eight tattoos of five NBA players (including LeBron James and Kobe Bryant) in Take-Two’s popular NBA 2K16 video game.  Solid Oak Sketches entered into copyright license agreements with each of the artists that designed the tattoos.

The complaint alleges that tattoos “fit squarely” within the Copyright Act’s definitions of “pictorial, graphic, and sculptural works”:

The issue of tattoo copyrightability has yet to be decided upon in court due to numerous settlements preventing a final judicial opinion.  However, when presiding over the preliminary injunction phase of the S. Victor Whitmall v. Warner Bros. case [concerning the use of Mike Tyson’s face tattoo in the film Hangover II], Judge Catherine D. Perry provided the greatest clarity thus far on the issue when she stated, “Of course tattoos can be copyrighted.  I don’t think there is any reasonable dispute about that . . . . [T]he tattoo itself and the design itself can be copyrighted, and I think it’s entirely consistent with the copyright law.”

According to exhibits filed with the complaint, Solid Oak offered to sell Take-Two a perpetual license for the eight tattoos for use in NBA 2K16 and subsequent versions of the game for $1.14 million.  The complaint asks for injunctive relief against further use of the tattoos, plus statutory and monetary damages.

The case is pending before Judge Swain.