The copyright for a tattoo design is often owned by the artist. But once that design is inked on the body, does that artist own the copyright of that image, too?

In the popular NBA 2K video game series, players such as LeBron James, Kobe Bryant, Kenyon Martin, and DeAndre Jordan are depicted with their real-world tattoos. The copyrights to those tattoo designs are owned by Solid Oak Sketches, and the company is suing video game maker Take-Two Interactive Software for allegedly infringing their copyright with unauthorized use of the tattoos.

Is Your Skin a Canvas?

That is the question at the center of this case.

Copyrights protect “original works of authorship fixed in any tangible medium of expression, now known or later developed, from which they can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device.”

Is skin a “tangible medium of expression”?

In its lawsuit, Solid Oak Sketches argues, “The copyrighted tattoo designs are imprinted permanently upon the skin of humans, clearly stable and able to be perceived for much more than a transitory duration.”

Take-Two Interactive Software points out the problem with this argument.

“In essence, Solid Oak argues that these public figures must seek its permission every time they appear in public, film, or photographs and that those that create new works depicting the players as they actually appear (with their Tattoos) should be enjoined and pay damages to Solid Oak.”

Furthermore, they believe that, even if the tattoos are copyrightable, they have a fair-use right to display the players with their tattoos, since they are not a prominent feature of the game.

Past cases seem to support tattoo artists, but there has been no official court ruling on the matter. If the case isn’t settled out of court, we may find out if tattoos are copyrightable soon. The trial may happen as early as December.