Ink on Screen: Solid Oak Sketches v. 2K Games and the Copyright Status of Tattoos in Video Games

A Southern District of New York court held that realistically depicting NBA players' tattoos in NBA 2K was non-infringing on three independent grounds — de minimis use, implied license, and fair use.

In Solid Oak Sketches, LLC v. 2K Games, Inc., No. 16-CV-724-LTS-SDA (S.D.N.Y. Mar. 26, 2020), Judge Laura Taylor Swain of the United States District Court for the Southern District of New York issued one of the most closely watched copyright decisions to address an increasingly common problem: what happens when tattoos inked on real people are reproduced in media that depicts those people. The defendants — the developers and publishers behind the NBA 2K basketball video-game franchise — had rendered, with photorealistic fidelity, five tattoos that appear on NBA stars LeBron James, Eric Bledsoe, and Kenyon Martin. Solid Oak Sketches, which had acquired licenses to the underlying tattoo designs from the artists who created them, sued for copyright infringement. The court granted summary judgment for the defendants in full, resting on three independent grounds — de minimis use, implied license, and fair use — any one of which would have defeated the claim.

At a glance

Case: Solid Oak Sketches, LLC v. 2K Games, Inc., No. 16-CV-724-LTS-SDA (S.D.N.Y.)
Decided: March 26, 2020 (summary judgment)
Holding: The reproduction of the players’ tattoos in NBA 2K did not infringe, on three independent grounds: (1) the use was de minimis because no reasonable observer would find the in-game tattoos substantially similar to the registered designs; (2) the tattoo artists granted the players implied licenses to use the tattoos as part of their likenesses, which flowed to the game maker; and (3) the use was fair use.
Posture: Defendants’ motion for summary judgment granted; the action dismissed.

A novel question with a thin appellate record

The decision is significant less for the legal doctrines it applied than for the factual setting in which it applied them. Tattoos plainly can be copyrightable: an original, two-dimensional pictorial design fixed on skin satisfies copyright’s modest originality and fixation requirements. But the copyright in a tattoo collides awkwardly with the autonomy and publicity interests of the person who wears it. If a tattoo artist retains an exclusive reproduction and display right, then in theory every photograph, broadcast, advertisement, film, and video game depicting the inked individual could implicate that right. Solid Oak offered the first sustained judicial treatment of that tension in the video-game context, and it did so cautiously, supplying not one rationale but three.

Importantly, the court did not hold that tattoos are uncopyrightable, nor that the players themselves “owned” the designs. Solid Oak’s ownership of the licensed copyrights was assumed. The defendants prevailed despite the plaintiff’s rights, because the manner and context of the use fell outside what copyright forbids.

Three independent grounds

De minimis use. Copyright liability requires not only copying but copying that rises to substantial similarity in the observable work. The court found that no reasonable factfinder could perceive the tattoos in NBA 2K as substantially similar to Solid Oak’s registered designs as they actually appear in the game. The tattoos belong to only three of more than 400 available players; they appear only when those specific players are on screen; and even then they are small, frequently out of focus, distorted by rapid movement, and obscured by other players and game elements. A user cannot meaningfully observe, let alone appreciate, the designs. Measured against the size, prominence, and observability factors that govern de minimis analysis in the Second Circuit, the use was simply too fleeting and indistinct to be actionable.

Implied license. The court’s second ground reaches the heart of the tattoo problem. Drawing on the undisputed evidence, Judge Swain found that the tattoo artists necessarily intended, when they inked the players, that the players could use and display the tattoos as elements of their own likenesses — including by appearing in public, on television, and in commercial settings. That intent gave rise to nonexclusive implied licenses running from the artists to the players. Because the players in turn licensed their likenesses to the game makers, the implied license traveled downstream: the defendants’ depiction of the players, tattoos and all, fell within the scope of a license that predated Solid Oak’s acquisition of any rights. Critically, Solid Oak took its licenses subject to those earlier-granted implied licenses and could not revoke what the artists had already permitted.

Fair use. Finally, the court held that the use was fair under 17 U.S.C. § 107. It found the use transformative: the tattoos were reproduced not to celebrate the designs as art but to depict the players accurately, in service of a realistic basketball simulation — a purpose distinct from the original expressive function of body art. The works were creative but already public; the defendants used the whole tattoos only because anything less would defeat the realism sought; and there was no cognizable market harm, because there is no evidence of a market for licensing tattoos for use in video games, and the game does not substitute for the tattoos. Every statutory factor, the court concluded, favored the defendants.

Doctrine in tension: realism as transformation

The most debated move in the opinion is its treatment of realism as a transformative purpose. There is an obvious objection: copying a work exactly, in order to depict reality faithfully, looks like the opposite of transformation. Yet the court’s reasoning has a coherent logic. The tattoos’ original purpose was personal expression on a particular body; NBA 2K’s purpose was to recreate recognizable athletes within a simulation, where the tattoos function as incidental markers of identity rather than as displayed artworks. The transformation lies in the change of function and meaning, not in alteration of the image. Whether higher courts will embrace that framing — particularly after the Supreme Court’s subsequent emphasis on the centrality of purpose and commercial substitution in fair-use analysis — remains uncertain, and the implied-license and de minimis holdings give the decision durable ground to stand on regardless.

Open questions

Does the analysis hold where tattoos are prominent rather than incidental? A close-up, a marketing image, or a game that foregrounds an athlete’s ink could undercut both the de minimis and the fair-use rationales.
How broad is the implied license? The court inferred a license to use tattoos as part of a likeness; it did not define the outer limits of that license or whether it covers uses unrelated to depicting the wearer.
Will the realism-as-transformation theory survive Supreme Court fair-use developments? Later authority emphasizing market substitution and the purpose of the secondary use may pressure that reasoning, though the alternative holdings cushion the result.
What should artists and clients do at the point of inking? The decision implies that express agreements at the time of tattooing could displace the implied-license default in either direction.

Implications

For media and game companies: Realistic depictions of tattooed public figures carry materially lower copyright risk where the ink is incidental, indistinct, and used to portray the person rather than to showcase the design.
For tattoo artists and licensors: Acquiring or holding a tattoo copyright does not confer control over every downstream depiction of the client; implied licenses granted at inking can defeat later infringement theories.
For athletes, actors, and other public figures: The right of publicity and the practical ability to appear in media are reinforced; a tattoo generally travels with the likeness it adorns.
For transactional lawyers: Express tattoo-rights agreements — addressing reproduction in photographs, broadcasts, advertising, and games — are the cleanest way to avoid the uncertainty the implied-license doctrine leaves behind.

Frequently asked questions

Are tattoos copyrightable? Yes. An original pictorial design fixed on skin can satisfy copyright’s originality and fixation requirements. Solid Oak did not question that tattoos can be protected; it held that this particular use of protected designs was nonetheless lawful.

Does this mean a video game can always copy a player’s tattoos? No. The court relied on three context-specific grounds — the tattoos were tiny and indistinct in the game, the artists had impliedly licensed the players to display them, and the use was fair. A more prominent or differently structured use could change the outcome.

Who controls a tattoo once it is on someone’s body — the artist or the client? The artist generally holds the copyright, but by inking a client the artist is typically found to grant an implied license allowing the client to display the tattoo as part of their own appearance. Express written agreements can override that default.