‘Can You Copyright a Tattoo?’ And Other Questions Game Developers Should Be Asking

Game developers often borrow from the real world to build more lifelike, compelling characters: a tattoo copied faithfully onto a digital athlete, a famous photograph reinterpreted as body art, a recognizable design rendered in pixels. These details can enhance realism and immersion, but they also carry legal risks.

As games push further into real-world likeness, the boundaries of copyright law have started to take shape through litigation. In three notable cases, courts have confronted the question of how far realism can go before it crosses into infringement. From fair use and implied licenses to the limits of visual expression, these rulings offer game studios practical guidance about what is protected, what’s off-limits, and where ambiguity still lingers.

1. Solid Oak Sketches v. 2K Games

This case began when Solid Oak Sketches, the rights holder to several tattoos worn by NBA players, sued 2K Games and Take-Two Interactive. The tattoos had been recreated on the players’ avatars in the NBA 2K series. Solid Oak argued that the use was unauthorized and infringed its copyrights.

The court saw it differently and ruled in favor of the game studio. The decision hinged on a few key points:

• The tattoos were barely noticeable during gameplay and weren’t a focus of the game. That made their inclusion legally insignificant.

• The players had an implied license to display their tattoos, which extended to digital representations of their likeness.

• The court considered the use of the tattoos transformative. They were part of a broader creative goal: realistically depicting actual athletes.

This ruling gave developers more flexibility. When a visual detail is incidental and tied to realistic character design, courts may be willing to treat it as fair use, especially if it's a small part of a much larger creative work.

2. Alexander v. Take-Two Interactive Software

A similar dispute led to a very different outcome. In this case, tattoo artist Catherine Alexander sued Take-Two over her original artwork, which had been inked on wrestler Randy Orton and later appeared on his avatar in WWE 2K. Unlike the Solid Oak case, the court found that Alexander owned valid copyrights and allowed the case to proceed.

At trial, the jury found that Take-Two had infringed her rights. The damages awarded were symbolic (just $3,750) and later reduced to zero because Alexander couldn’t show any financial harm or lost licensing opportunities.

Still, the legal process was expensive and time-consuming. And the fact that the fair use and implied license arguments didn’t prevent the case from going to trial shows how unpredictable these claims can be.

3. Sedlik v. Kat Von D

This more recent case didn’t involve a video game, but its implications may still resonate with developers. It centers on tattoo artist Kat Von D and her use of a photograph of Miles Davis taken by Jeffrey Sedlik. She used the image as a reference for a tattoo she gave to a friend free of charge and shared parts of the process on social media.

Sedlik sued for copyright infringement, arguing that the tattoo copied his photograph too closely. A jury in the U.S. District Court for the Central District of California sided with Von D. They concluded that the tattoo and the photograph were not “substantially similar.”

Sedlik asked the court to override the verdict or order a new trial, but the court denied the motion. He has since appealed to the Ninth Circuit. His legal team argued that the jury received flawed instructions on fair use and questioned whether the court should have allowed the jury to decide whether the tattoo was intrinsically similar to the photo, which is a test that is more subjective and based on how an average person would compare the works.

Von D’s lawyers pushed back. They argued that the photograph was used only as a temporary reference, that the stencil washed off, and that Von D made her own creative choices when tattooing.

What happens next could shape how courts handle cases involving reference images and tattoos, particularly in an era where social media blurs the line between personal expression and public display. A ruling that broadens the standard for infringement could create more exposure for artists, tattooers, and yes, game developers too.

What This Means for Game Studios

These three cases don’t draw a bright line, but they offer some practical lessons. Here are a few to keep in mind:

• Tattoos are not automatically covered by likeness rights. Even if you have permission to use a real person’s image, you may still need to clear rights to third-party artwork like tattoos.

• Fair use and implied license are not a guarantee. Courts evaluate these defenses on a case-by-case basis. Minor factual differences can have a major impact on the outcome.

• Visual design alone is not enough. To claim or challenge copyright protection, it helps to tie the design to something more, like narrative, character development, or expressive identity.

What Can Game Companies Do to Stay Covered?

Studios should consider the following:

• Get clear rights early. If you're working with real people or recognizable designs, secure permissions up front, including from tattoo artists or photographers, if needed.

• Consider the expressive role of each element. A design that’s purely decorative carries less risk than one that reflects personality or story. The more expressive the element, the more care you should take.

• Keep good records. Document your reference materials, creative process, and licensing decisions. If a claim ever comes your way, having that paper trail can help resolve it quickly.

• Ask whether realism is essential. If an expressive detail isn’t central to the character or experience, think about whether it can be changed or omitted to avoid unnecessary legal exposure.

As games become more lifelike and personalized, copyright questions will continue to surface. These cases show just how nuanced and context-specific the law can be. What matters most is not just what’s included in your game, but why, how, and whether it can be justified when the spotlight turns your way.