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Video games & tattoos – who owns the copyright?

27 Sep 2018

The development of technology in the videogame industry, along with an increasing demand for videogames to be more realistic and graphically satisfying has resulted in a year-on-year improvement of the graphics and design aspects of almost all videogames. In FIFA for example the players, stadiums, balls, football boots etc look more and more realistic year-on-year and this is replicated for almost all popular mainstream sports games from NHL to NFL. Graphical improvements are great for consumers but it has resulted in some interesting and peculiar intellectual property issues.

One particular issue that is currently before the US District Court surrounds who is the copyright holder of the tattoos that iconic basketball star Lebron James has. Lebron James appears in the videogame NBA 2k19 (the basketball equivalent of FIFA) along with a full roster of players from the NBA. Owing to graphical advances in the videogame industry every detail of Lebron James is replicated in the videogame, from his hairstyle to tattoos. The issue before the US District Court surrounds who owns the copyright in Lebron James’ tattoos and can consent to their reproduction in videogames: the tattoo artist or Lebron James as the ‘owner’ and wearer.

In the UK and in the US, copyright in images and designs belongs to the person that created and produced the design. There therefore might be an argument to say that the tattoo artist who applied Lebron James’ tattoo owns the copyright in the tattoo as the creator and artist. This position could result in many tattoo artists across the country owning the copyright in any tattoo that they have applied. As bizarre as this may sound, in 2013 the NFL advised its member players to obtain an assignment of copyright for any tattoos that they might get - the idea behind this suggestion being to avoid any disputes as to who might own and hold copyright in a tattoo.

With a degree of uncertainty surrounding copyright in tattoos, and the high commercial value of a sports star licensing their likeness for advertising, videogames and merchandising it is not surprising that a dispute has arisen.

The Lebron James scenario demonstrates ownership of intellectual property rights can be a grey area. Professional advice is always a good idea when contemplating challenging intellectual property rights or in circumstances where you may believe that your intellectual property rights have been infringed, whether by a company, organisation or an individual.

The ownership issue surrounding copyright in tattoos and the reproduction of designs in videogames is a novel one. The outcome of the Lebron James case in the US might have a bearing on whether we see a challenge in the UK especially given the popularity and huge economic value of the Premier League and videogames such as FIFA.

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