Can I use a tattoo design in my video game?

A tattoo artist in America has successfully sued 2K Sports and Take Two Interactive for copyright infringement.

The artist designed tattoos for a WWE wrestler in America, which were then replicated on the in game models of the players in the WWE series of games from 2016 to 2018.

The games developer tried to argue that the use of the tattoos was “fair use” under US law (a similar concept to fair dealing in the UK though it is much more broadly applied in the US), but a jury disagreed with this argument. The artist was awarded damages of around $3,750 – interestingly, the jury found that none of the game’s profits came as a direct result of the artist’s tattoos being used in game, so they were not entitled to further damages.

This is an interesting case for copyright law, and although not a UK case, may be helpful in informing video game developers and tattoo artists in respect of their copyright obligations and protections.

Tattoos and Copyright in the UK

Copyright is an automatic right that arises on creation of an original work, such as a piece of art. The threshold for originality is fairly low, and so original tattoo designs are therefore likely to have copyright protection, and the protection will be owned either by whoever designed the tattoo (or their employer if they are an employee).

Copyright can be infringed where the artwork is copied or reproduced in whole or in part (as long as that part is substantial) and including a tattoo design on an in-game avatar would certainly fall under the act of reproducing a design – even if this is for realism goals!

It is not impossible that a claim for copyright infringement could be brought against a video game developer based on a UK artist’s tattoo design appearing in a game.

Briffa Commentary

This case highlights the importance of licencing when it comes to video games.

Where you are looking to include lifelike replicas of people in your games (or indeed models of well-known items or shapes) you should ensure that you have the appropriate permissions in place to use these designs.

For tattoos, this will include ensuring you are allowed to reproduce the copyright work within your game. Other areas to look out for include design rights or trade marks for games (particularly for cars or clothing models included).

Great examples of licencing arrangements in video games include the Forza series for cars, or the Sims series, which has worked with various design houses such as Diesel or Ikea over the years for their in-game clothing and furniture. There can also be crossovers with movies or digital content. Fortnite has carried out lots of collaborations with other game studios and film franchises, including the Marvel universe and Halo.

If you are looking at including existing designs or intellectual property in your video game and want to discuss the potential pitfalls, please get in touch!