Many professional athletes these days—particularly those in the National Basketball Association—have their bodies bedecked with all sorts of tattoos.  It’s a trend that has steadily caught fire over the last several years with one recent estimate indicating that over 50% of all NBA players sport body art.  These tattoos are not just trivial works, but play an integral part in creating the player’s “brand.”   As one pro baller recently stated about his beloved tattoo, “it’s not just on me, it’s in me.”

A recent copyright infringement complaint may test the boundaries of whether these “works of art” are “works of authorship” under the Copyright Act. In Solid Oak Sketches, LLC v. Visual Concepts, LLC, the Plaintiff sued the developers of the wildly-successful NBA 2K16 video game.  According to the allegations in the complaint, the Plaintiff is the “exclusive licensee” of the copyrights to various tattoos that are on real-life NBA players such as LeBron James and Kobe Bryant.  The 2K16 game allegedly reproduces and displays these tattoos on the players’ in-game avatars without first seeking a license to do so.

On first blush, copyright protection for tattoos seems perfectly logical under the Copyright Act.  After all, wouldn’t the designs easily qualify as copyrightable artistic works when viewed off the body?  The problem is—as the Plaintiff admits in its federal complaint—“[t]he issue of tattoo copyrightability has yet to be decided upon in court.”  And, there might be persuasive reasons why a design etched onto a human body should not qualify for copyright protection.

For example, Professor David Nimmer previously opined (in the case involving alleged copyright infringement of the tattoo on Mike Tyson’s face) that “live bodies do not qualify as a ‘medium of expression’ sufficient to ground copyright protection.”  Additionally, as Nimmer observed, if a tattoo gains “recognized stature” under the Visual Artists Rights Act, a court could enjoin its destruction or alteration.  If nothing else, a federal court ordering “King James” to maintain his body art certainly seems inconsistent with notions of individual liberty and autonomy.

Moreover, even if a tattoo is a work of authorship, isn’t a tattoo artist providing an implied license to have this work displayed by etching this art onto the body of a world famous athlete?  Admittedly, implied licenses are “narrowly construed.” Nevertheless, it seems like there is at least some argument that when a tattoo artist emblazons a pro athlete’s body with a tattoo, that athlete should have some limited right to allow its reproduction as part of a video game experience.

Some tattoos and body art may certainly be works of art, but it’s not clear whether they are “works of authorship” under the Copyright Act.  It’s the opening tip-off in a long game, and unless there is a private settlement, one party is going to be victorious at the final buzzer.