In a recent case, a tattoo artist sued a game maker for copyright infringement for copying the tattoo into the game.  The game is a sport with famous players licensed to be “realisticly” playing in it.   

The game maker has a license to make the players as realistic as possible.  The tattoo artist knowingly placed the tattoo on the famous players recreated in the game.  So, when the game maker placed the tattoos on the famous players in the game, the tattoo artist sued for infringement. “…the court held that Defendants transformed the tattoos by using them for “general recognizability” of players in the game, rather than the original purpose for which they were created, which was to allow the players to express themselves through body art.”

The Court addressed other issues such as the tattoo, as replicated, was quite small and not as visible as the original.  Another issue addressed was fair use, and the Court said “Plaintiff had conceded that the tattoos as featured in the game did not serve as a substitute for use of the tattoos in any other medium. There was also no evidence that there was a market for licensing tattoos for use in video games or other media or that such a market is likely to develop”

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