Content area
Full Text
Introduction
Originality is "[t]he sine qua non of copyright" (Feist Publications, Inc. v. Rural Tel. Ser. Co., 1991, p. 345), meaning without originality there is no copyright. Yet, what if original work capable of copyright protection existed on the bodies of celebrity athletes? Should courts use copyright law to protect the copyright owner at the expense of the athletes' right to control the commercial use of their own bodies? These are the issues presented in Solid Oak Sketches, LLC v. TakeTwo Interactive Software, Inc., (2016), a copyright action brought by tattooists against video game producers concerning ownership of original tattoos featured in sport video games. The tattoos at issue in Solid Oak Sketches are on the bodies of NBA stars LeBron James, Kobe Bryant, Kenyon Martin, DeAndre Jordan, and Eric Bledsoe.
Solid Oak Sketches joins a line of cases in which tattooists have asserted their rights in copyright against the replication of tattoo work without permission in commercial products and advertisements. Like the case in question, several previous cases raised similar claims. For example, tattoo artists have sued a sport video game producer over the replication of tattoo work in a video game featuring former NFL player Ricky Williams (Allen v. Electronic Arts, 2013); a video game publisher THQ for its unauthorized depiction of professional UFC fighter Carlos Condit's lion tattoo on the UFC Undisputed video game (Escobedo v. THQ Inc., 2012); the replication of Mike Tyson's iconic face tattoo in The Hangover 2 (Whitmill v. Warner Bros. Entertainment Inc., 2011); and alleged copyright violations based on a Nike advertisement that featured the artist's work on NBA star Rasheed Wallace (Reed v. Nike, 2005). All of the tattoo copyright cases leading up to Solid Oak Sketches resulted in settlement agreements before trial. The only case that is close to providing authority on the issue is Escobedo v. THQ Inc. (2012). In Escobedo, the tattoo artist was able to secure $22,500 in damages from a federal bankruptcy court based on the unauthorized depiction of Condit's lion tattoo in the UFC Undisputed video game. However, even with the Escobedo award, the lack of published decisions in this area of law results in ambiguity as to the extent of protection, if any, copyright law affords to tattoo artists...