NBA 2K16 News Post

Take-Two Interactive & Visual Concepts Sued By Tattoo Artists

07:16 PM - February 1, 2016 by jfsolo

Some of the tattoos seen on LeBron James, Kobe Bryant, Kenyon Martin, DeAndre Jordan and Eric Bledsoe are getting Take-Two Interactive and Visual Concepts into some hot water. Based off of articles from ESPN (Darren Rovell) and The HollyWoodReporter (Eriq Gardner), the makers of the NBA 2K series are getting sued for $1.1 million, because Solid Oak Sketches claims the tattoos are their copyrighted work.

Quote:


	Worried that they might be party to a lawsuit, the NFL Players Association told players in 2014 that, in order for their tattoos to be represented on merchandise, including video games, they needed to get waivers from the artists.

This is one of the main reasons other companies don't put tattoos in their game. Getting permission from the tattoo artist can take quite a bit of time. The Madden team had to go through that process to get the tattoos for Colin Kaepernick (Madden NFL 15) and Odell Beckham, Jr. (Madden NFL 16) in the game.

Quote:


	In a demand letter to Take-Two before the lawsuit was filed, an attorney for the plaintiff took the $22,500 award to Escobedo, and using information about NBA 2K16 sales, calculated that the value for the eight tattoos should be $572,000. But there was also the matter that two of LeBron James tattoos were featured on the cover of the videogame. According to the letter, "Given that those two tattoos are 'the face' of the 2014 game, their marketing and promotion value is, conservatively, at least four times the value of the rest of the tattoos." Thus, the claimed value of using all of the tattoo designs in question allegedly equals $819,500. That tattoo design company offered a perpetual license for a fee of $1,144,000.

You can read the full complaint at The Hollywood Reporter.

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Member Comments

# 81 bcruise @ 02/02/16 03:04 PM

A thought on FIFA (and it's not something I know for sure, just a guess):

Being an international sport with players from all over the world, it might be subject to different (i.e. less strict) copyright and IP laws than the major US sports games are. It seems like that might be an apples to oranges comparison.

It's also possible that money-hungry tattoo artists and their lawyers haven't come knocking on EA's soccer studio door yet, much like 2k's until now.

# 82 24ct @ 02/02/16 03:12 PM

I don't think ppl understand how much money they make on VC alone. Game sold like 8 million copies plus. VC can be purchased for the price of another full game at $50. They have it. Serves them right for making VC a microtransaction anyway. Call it karma.

I do remember Madden not having tattoos because of licensing issues. I thought it was just lazy. But now I see it was just cheap.

# 83 SpeedyClaxton @ 02/02/16 03:17 PM

Well i can't imagine seeing players without tats..JR Smith, LeBron, Birdman without tats is really a garbage to me, small part of a game but adds big time to authenticity

# 84 luijo @ 02/02/16 04:09 PM

Quote:

Originally Posted by CM Hooe


	That is not at all what the tattoo artists are saying. The NBA player who purchased the tattoo has the right to wear and display it; he has paid the artist for the work in question. The video game publisher, which has not paid the artist for a license to use the artist's intellectual property, does not have the same license unless and until the publisher pays the artist. It doesn't matter that the art is literally on the player's skin, the intellectual property of the art still belongs to the artist.

So, what happens if the player decides to put a new tattoo over the previous one? can he get sued by the artist because he modified his property?

# 85 ksuttonjr76 @ 02/02/16 04:19 PM

Quote:

Originally Posted by CM Hooe


	That is not at all what the tattoo artists are saying. The NBA player who purchased the tattoo has the right to wear and display it; he has paid the artist for the work in question. The video game publisher, which has not paid the artist for a license to use the artist's intellectual property, does not have the same license unless and until the publisher pays the artist. It doesn't matter that the art is literally on the player's skin, the intellectual property of the art still belongs to the artist.

That seems like a stupid loophole in the law....It's not like 2K Sports is marketing the tattoos. 2K Sports is marketing a basketball game with players who, by coincidence, wear tattoos.

I could see a better lawsuit if 2K Sports was marketing the individual tattoos as a "selling point", and the consumer base mainly bought the product based on the tattoos found in the game. Otherwise...the artist(s) are ASSUMING that 2K Sports is making a profit due to the tattoos. Personally, I would still buy the game regardless without the tattoos....although it would bug me to DEATH not seeing tattoos on Paul George, Monta Ellis, George Hill, etc. That would be too surreal for me to watch a live game on TV, then to fire up NBA 2K17 to see something totally different.

# 86 coolcras7 @ 02/02/16 04:22 PM

Quote:

Originally Posted by 24ct


	I don't think ppl understand how much money they make on VC alone. Game sold like 8 million copies plus. VC can be purchased for the price of another full game at $50. They have it. Serves them right for making VC a microtransaction anyway. Call it karma. I do remember Madden not having tattoos because of licensing issues. I thought it was just lazy. But now I see it was just cheap.

Who gives a crap, they are not forcing people to buy VC, it's your choice so get off it. Madden/ Live and a bunch of other games that don't have as much game options cost exactly the same as NBA 2k16 VC just allows 2k get additional revenue to hire a guy like DaCzar, Bed etc...and again it your personal choice to purchase, if this becomes an issue it will have negative affect on either the overall presentation of the game or 2k will have to now allocate funds that could be used somewhere else to license body art.

# 87 CM Hooe @ 02/02/16 04:34 PM

Quote:

Originally Posted by luijo


	So, what happens if the player decides to put a new tattoo over the previous one? can he get sued by the artist because he modified his property?

The physical tattoo is no longer the property of the artist. That belongs to the person who purchased the tattoo. They can modify it however they want to for personal use.

There's a distinction between physical property and intellectual property. The intellectual property of the tattoo - the design, line work, colors, etc. all in abstract - is what is protected; a second artist can't appropriate that idea and claim it as their own original work, regardless of the medium. A physical representation of that tattoo produced and sold directly by the original artist owning the IP is not governed by the same set of laws.

To use the AC/DC example again - you can buy, sell, trade, modify, or destroy a single physical vinyl copy of their famous 1980 record release "Back In Black". You cannot, however, record the audio of the "Back In Black" record to a cassette tape and attempt to sell that cassette tape as your own original work; the recordings, performances, and compositions on the original record and on the cassette both belong to the band.

Quote:

Originally Posted by ksuttonjr76


	That seems like a stupid loophole in the law....It's not like 2K Sports is marketing the tattoos. 2K Sports is marketing a basketball game with players who, by coincidence, wear tattoos.

One of the major selling points of NBA 2K and most licensed console sports games is authenticity - the quality of accurately portraying the real-life version of the sport in question. Players having their tattoos unquestionably adds to the authentic quality of the game by increasing the quality of the player likenesses; video game LeBron James wouldn't look as much like his real-life self if all his tattoos were missing, and the game becomes less authentic if his tattoos are not present.

In the current state of things, 2K is appropriating the work of other artists to improve the quality of their product without the original artists' permission or consent.

It's not so much a loophole as much as existing IP law catching up to technology.

# 88 iFnotWhyNoT @ 02/02/16 05:23 PM

Im actually ok with this...

If the artist was the sole creator of the tattoo without ANY design input in the creation of said tattoo, then yes he is the owner of the design of the tattoo. So if a marketing brand or Take-Two want to "recreate", not display a pic of lebron on the cover of the game with his tattoos, but recreate their design for a game or marketing ad, then yes its a copyright issue. That's pretty simple enough for me. The argument of Lebron or whomever displaying it on TV doesn't hold water because the networks aren't recreating the artists designs they are just showing Lebron and are not directly or indirectly being compensated for showing specific tattoos or any tattoos. Its not a tattoo show, its the NBA.

Going forward id keep creating tattoos for the game id just make it generic looking enough. Kobe's butterfly becomes a star and whatnot. I dont care too much for aesthetics but ill admit it would be really weird at first if everyone was bare all of a sudden.

# 89 DreamAgain @ 02/02/16 06:10 PM

Quote:

Originally Posted by CM Hooe


	That is not at all what the tattoo artists are saying. The NBA player who purchased the tattoo has the right to wear and display it; he has paid the artist for the work in question. The video game publisher, which has not paid the artist for a license to use the artist's intellectual property, does not have the same license unless and until the publisher pays the artist. It doesn't matter that the art is literally on the player's skin, the intellectual property of the art still belongs to the artist.

So what if I take exact image of LeBron's tattoo and put it on my skin myself? What happens then

# 90 Mikerophone @ 02/02/16 06:30 PM

Quote:

Originally Posted by DreamAgain


	So what if I take exact image of LeBron's tattoo and put it on my skin myself? What happens then

Nothing, that is considered a non-infringement use of the work. Copyright infringement only occurs when the offending party earns income from said infringement. The person who would be on the line for infringement would be the tattoo artist that you paid to copy the tattoo. Or, if you happened to be a male model and used your new tattoo to gain leverage in your industry, that could be considered infringement as well.

# 91 TheDuggler @ 02/02/16 06:31 PM

Does the NBA have to get permission from every tattoo artist to broadcast the players on TV?

# 92 Mikerophone @ 02/02/16 06:33 PM

What 2k should do is claim the game is a satirical portrayal of the NBA (use Spike Lee's story mode for proof), which would protect everything in the game... see - South Park.

# 93 Mikerophone @ 02/02/16 06:35 PM

Quote:

Originally Posted by TheDuggler


	Does the NBA have to get permission from every tattoo artist to broadcast the players on TV?

I think you mean "Television Stations" and not "NBA", but...no, they don't.

The television stations are not reproducing the work - copying - if you will. They are merely showing the players in real time and those players happen to have ink on them.

In a game, that has to be recreated...that's where infringement comes into play.

# 94 TheDuggler @ 02/02/16 06:44 PM

Quote:

Originally Posted by Mikerophone


	I think you mean "Television Stations" and not "NBA", but...no, they don't. The television stations are not reproducing the work - copying - if you will. They are merely showing the players in real time and those players happen to have ink on them. In a game, that has to be recreated...that's where infringement comes into play.

Aren't the players body scanned to get accurate tattoos? Whats the difference between that and putting a picture of a person up on TV? You are scanning the individual its just coincidental that their body is tattooed.

# 95 redsox4evur @ 02/02/16 07:07 PM

Quote:

Originally Posted by TheDuggler


	Aren't the players body scanned to get accurate tattoos? Whats the difference between that and putting a picture of a person up on TV? You are scanning the individual its just coincidental that their body is tattooed.

Here's your difference:
Copyright law disagrees with you. Even though a photo of the tattoo is technically different from a graphical rendering, they are treated the same.

See 17 USC 102 - Scope of copyright. Clearly covers pictorial and graphic works under a(5).
See 17 USC 106 - Exclusive rights in copyrighted works . Specifically see sections (1) and (2). FYI, a derivative work is a "work based on or derived from one or more already exist- ing works. Common derivative works include translations, musical arrange- ments, motion picture versions of literary material or plays, art reproductions, abridgments, and condensations of preexisting works." A graphical representation of a tattoo is either an art reproduction, or in the alternative an "abridgment."

EA is SMART for not illegally recreating a tattoo. What's wrong with not wanting to get sued?

Also, as a bit of irony, the importance you are all placing on tattoos makes a lawsuit against the NFL, NFLPA, etc. more lucrative for the IP holder because it shows a high monetary value of the intellectual property at issue = more damages.

Some other things to be considered:
1) If the tattoo is non-original it doesn't need to be approved by the tattoo artist. See 17 USC 102 (a). So, if a player has a tribal tattoo that is a reproduction of a tattoo that dates back hundreds of years, the tattoo artist has no IP rights.
2) Does the player own the tattoo IP in the first place? See 17 USC 201(b) Works made for hire. In the case of a work made for hire, the employer or other person for whom the work was prepared is considered the author for purposes of this title, and, unless the parties have expressly agreed otherwise in a written instrument signed by them, owns all of the rights comprised in the copyright. I'm curious (having no tattoos) if a tattoo artist retains the IP rights with a written instrument.

# 96 mcpats @ 02/02/16 07:16 PM

I can guarantee you that the artist that gave LeBron James his tattoo will tell everyone that steps foot in his shop that he did a tattoo for king James and he probably has a picture to prove it. So he is profiting off of using LeBron as de facto marketing

# 97 Aliean @ 02/02/16 07:23 PM

i think i just got dumber by reading that article.what a load of horse ....
people get more pathetic by the day

# 98 kolanji @ 02/02/16 07:27 PM

Its like DRM on tattoos 😨.....next thing we know tattoo artist starts putting thier sinature in ppls skin....shm

Mein this is just ridiculous to say the least if i was take two i would take this up with the NBA...unless this doesnt fall under paying for the license to recreate a simulation...cause as far as am concerned this not a 2k problem its a NBA problem.......

Is this not the case????

# 99 roadman @ 02/02/16 07:34 PM

EA has already been sued over this and lost. They didn't take their cause to the NFL. I'm sure 2k won't take this to the league office and it won't sniff Silver's desk. I'm sure his office has better things to do than participate in talks with VC about them being sued.

So, now the artist are going after 2k and VC. Sucks for gamers, it is what is and there isn't anything anyone can do about it. VC knew the outcome of the EA case, they knew their number was coming up shortly,

It's a slam dunk case because of outcome that happened with EA.

# 100 CaseIH @ 02/02/16 07:39 PM

This is ridiculous, people will sue at the drop of a hat anymore. I hope they get a judge that is just as sick of stupid lawsuits as I am, and 2k ends up not having to pay. And no Im not a fanboy buy any means, as its not like this company probably dont have it coming to them in some form with some of the BS they try to feed people over the years. Its just wrong to sue, I think there are a few legit reasons to sue, but something like this is as ridiculous as suing McDonalds over their coffee hot.

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