Before the Ink Is Dry: Bodily Autonomy and Tattoo Copyright in Video Games

Tattoos are unique amongst copyrightable forms of expression because, by virtue of being drawn onto human canvases, they necessarily require that the artist grant an implied license to the tattooed individual. By this license, a tattoo is integrated with the tattooed individual’s overall likeness, with all the associated rights that follow. In recent years, a trio of federal district court decisions have attempted to demarcate the metes and bounds of the implied license for tattoos, specifically in the realm of video games. On March 26, 2020, in Solid Oak Sketches, LLC v. 2K Games, Inc., the U.S. District Court for the Southern District of New York held that the reproduction of the defendant’s tattoos in a video game was de minimis, covered by an implied license, and protected by fair use as a matter of law. The litigation sparked national interest and gave rise to subsequent lawsuits on the same issue in other jurisdictions. On September 26, 2020, in Alexander v. Take-Two Interactive Software, Inc., the District Court for the Southern District of Illinois held that the reproduction of athletes’ tattoos in video games was not necessarily protected by implied license or fair use; rather, the question was a matter of fact for juries to consider at trial. On September 20, 2022, in Hayden v. 2K Games, Inc., the District Court for the Northern District of Ohio came to the same conclusion as Alexander. Although this issue has not yet reached the appellate level, the disagreement necessitates clearer guidance in the law. This Note argues that the Southern District of New York’s approach should be adopted by the federal courts because it comports with the concept of bodily autonomy and most efficiently accomplishes the policy goals of copyright.