Video Games are Under Copyright Heat Because Athletes Don’t Own Their Tattoos

Athletes like LeBron James have distinctive tattoos, which are also on their digital-character versions in sports video games. The issue is that several of them are the subject of copyright lawsuits.

LeBron James has his mother’s name, Gloria, tattooed on his right shoulder, as well as a portrait of his son. The 330 is his hometown area code. While he picked the ink, as personal, immortalized memorabilia, these tattoos may not truly be his.

Any creative illustration “fixed in a tangible medium” is eligible for copyright. According to the United States Copyright Office, that includes someone’s tattoos. Legal experts say that the copyright is inherently owned by the tattoo artist, not the person with the tattoos.

While for most tattooed people this doesn’t cause a concern, for tattooed celebrities like James, as well as their tattoo artists, there is a huge issue. Especially for video game designers.

Lawyers generally agree that an “implied license” allows people to freely display their tattoos in public, even when they are public figures. This includes on TV, social media platforms, or magazine covers. But it doesn’t come without a price.

Digitally recreated tattoos on avatars in sports video games causes concern with copyright infringement.

“Video games are an entirely new area,” said Michael A. Kahn, a copyright lawyer who represented the designer of the face tattoo on the boxer Mike Tyson. “There is LeBron James, but it’s not LeBron James. It’s a cartoon version of him.”

According to The Times, “Electronic Arts, a game developer and publisher, recreates more than 100 tattoos in its FIFA and UFC games, including the colorful sleeve on the right arm of the soccer star Lionel Messi and a heart-eating gorilla on the chest of the fighter Conor McGregor.”

However, only a handful of players in Madden football games are depicted with their real-life tattoo work.

Electronic Arts faced a copyright infringement lawsuit in 2013 after the cover of the game NFL Street included an illustration of the running back Ricky Williams and some of his tattoos. The artist then withdrew his claim.

However, the issue still stands. Many players’ sports agents advocate for athletes’ likeness to be secured through players’ unions. The union advises athletes to secure licensing agreements before they get tattooed.

Artists have an incentive to sign rather than pass up a client who could be a billboard for their work.

Gotti Flores has spent at least 40 hours tattooing one of the few players with tattoos in Madden, NFL receiver Mike Evans. Flores was surprised, he said, “that he had to give permission for his work to be reproduced in the game.”

Flores signed a waiver, but said, “Really it didn’t even matter to me. It was dope to have my tattoos on there.”

But not all tattoo-licensing cases go that way.

At least three lawsuits have been filed against Take-Two Interactive, a game developer and publisher, and a subsidiary, 2K Games.

Federal courts ruled each case could have a “ripple effect among sports video games, which emphasize realism.”

Solid Oak Sketches obtained the copyrights for five tattoos on three basketball players — including Lebron James’ portrait and area code— before suing in 2016 because they were used in the NBA 2K series.

The following year, an artist sued because the Gloria tattoo on Mr. James, among others, was included in the same franchise.

Shawn Rome and Justin Wright, two of the three tattoo artists who licensed their work to Solid Oak, said they “had been deceived by its founder, Matthew Siegler, and never desired a lawsuit. He approached them with a plan to incorporate their tattoo designs into a clothing line, they said, but it went nowhere.”

Rome said, “He’s just poaching on artists.”

Before filing the lawsuit, Solid Oak requested over $800,000 for past infringement and offered a $1.14 million deal for future tattoo use.

Law professor at NYU, Christopher Jon Sprigman, said, “Solid Oak’s lawsuit amounts to a shakedown and copyright trolling.”

“They shouldn’t be allowed to tell LeBron James that he can’t make deals to license his likeness,” he said. “The ability of the celebrity, or really anyone, to do that is an element of their personal freedom.”

Although video game companies already pay to license copyrighted music, they may need to incorporate forms and/or fees to their creating repertoire, if they want to circumvent big suit costs.

While it makes sense, from a business perspective, to not include players with tattoos, or any of the tattoos of athletes, does it make sense in this age of tattoos being more and more normalized in today’s time?

Should video game designers just design new tattoos for these players?

Athletes, on and off the court, still have their tattooed hands tied.

The most important question is, however, if athletes don’t own anything—in between this eSports crossfire, as well as being stuck as a pawn for tattoo sponsorships on the physical court—do athletes even get a say?

“My tattoos are a part of my persona and identity,” Lebron James wrote in a declaration of support for Take-Two and 2K Games. “If I am not shown with my tattoos, it wouldn’t really be a depiction of me.”