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

# 121 jfsolo @ 02/02/16 11:55 PM

Those of you who really care about this sort of thing should prepare yourself mentally for the very real possibility that most tats will be gone next year. A few diehards may not buy the game because of this, but most people will be like, "well that sucks" and then just keep playing the game.

# 122 ksuttonjr76 @ 02/02/16 11:55 PM

Just for the sake of clarification, the other suits were settled out of court. Meaning that the companies didn't want to mess with it or risk losing/bad press. Settling is not the same as losing....

EA merely settled then made it so they couldn't be sued in the future. Now, 2K Sports has to make the same decision whether to fight it or settle.

# 123 JohnDoe8865 @ 02/03/16 12:00 AM

Could 2K hypothetically use the scanned tattoos and then slightly alter them on the artist side so that they aren't then using the copyrighted IPs?

Would that be a realistic workaround, if they decide not to pay? Otherwise, I guess PC gamers can edit them back in.

# 124 24ct @ 02/03/16 12:20 AM

Quote:

Originally Posted by WISports


	I own my own tattoo parlor. And I can honestly say, I wouldn't care one bit. What is it hurting? If anything, it's getting your work out in the public eye (big time).

Thanks for the input. I'm sure it's different for every artist. Like not all the players tattoo artists are suing. Just a select few so it just depends on the artist. I get what you're saying tho. I think it's fine some artists don't like it tho. Well I just understand really.

# 125 24ct @ 02/03/16 12:27 AM

Quote:

Originally Posted by ksuttonjr76


	In my mind, it's not the artist's property. The artist wasn't the sole creator of the tattoo, because he would have gotten input from the customer/player. Music is non debatable who created the music. It's not debatable who writes a play, novel, short story, etc. It's not debatable who creates a fashion line. To me, you would have to convince me that tattoo artist truly "owns" the tattoo before I can consider it a copyright infringement. I look at tattoo artists as providing a service in the realm of haircuts, make up, fingernails, landscaping, painting buildings, interior decorating, etc. Basically, if you need input from the customer to create it, then to me you can't "own" copyrights to the end product.

True. And to add to that if an artist buys a beat from a beat maker with a sample it's the artists responsibility to get it cleared. So I get what you're saying. But if someone gives me an idea for a drawing and I paint it, I would consider that mine. It goes from intellectual property to actual physical evidence.

Again I'm not a lawyer and don't really know what I'm talking about lol but it just makes sense to me. Once you pen something it's more proof of it being yours. Unless the player in question drew the picture himself. I think that's a different case. But when it comes to someone providing an idea and someone else making it real, it just seems it would be more of the creators ownership than the idealists.

# 126 swac07 @ 02/03/16 04:31 AM

-singing in my best O'jays impersonation- "for the loooooooove of moooooooneeeeeeey...." smh

# 127 BellSKA @ 02/03/16 06:43 AM

Quote:

Originally Posted by coolcras7


	You do realize that people are jerks and will try to take advantage of this situation, we will be the ones who loses. Can you imagine like MSG, EA/2K buying the rights to Tattoos and it's only available on one of the games.

This basic idea is what I immediately thought of when I read this story. While we all feel like we are paying more/ getting less; what do you think will happen if Take2 and 2K lose any sort of revenue from this?

The idea that 2K has the vault of stored money and can easily take care of this situation may not be that far fetched. Do understand where that money originally came from. They will try and recoup that from the customer before they ask for more money from sponsors.

If you think the VC payout now is a mere pittance, just wait till they squeeze the consumer to purchase VC just to stay competitive.

# 128 videlsports @ 02/03/16 09:18 AM

just cut the tattoos out. seriously I'm not in n mood to hear 2k scaling back any future development for sports titles because of this. I don't blame the artist wanting to get paid for their work, I just don't want to lose any more sports games.( I don't care if I'm overreacting) So just lose the tattoos. Gameplay first

# 129 CujoMatty @ 02/03/16 09:31 AM

I don't at all understand the "EA is protecting themselves against getting sued" argument. I know most people have forgotten that EA makes a game called NBA live with the same tattoos.

Also I see what the law says but it's a case of common sense vs legal mumbo jumbo IMO. People want the players to replicate their real life counterpart that's it. The same shoes, accessories, hair styles and tattoos. I don't get how anyone with any sense would really genuinly care if a tattoo is being "recreated" on a player in a video game or seeing the tattoo on a player on tv. The only reason I can realistically see is because you think you can get money. It really is a money grab. 1.1 million is fair? Really?

# 130 Poke @ 02/03/16 09:45 AM

I seen this coming. It was just a matter of time. But really do sports magazines, basketball card companies etc. have to pay too? This is ridiculous. Once a person pays for the art and its on their body it belongs to them. I don't care who designed what. What's next? Are the barbers and hair stylists going to start charging too.

# 131 SpeedyClaxton @ 02/03/16 10:37 AM

As much as i am fan of basketball and longtime 2k player as well i must admit i wouldn't buy it if they cut it out. Gameplay is always number one but authenticity as well is very high on priority list for me, i don't pay for fake stuff and always target authentic game to buy. That's why i stopped buying PES years ago because they couldn't license teams for their game. They earn each year ridiculous amounts money and they couldn't buy FIFA license for teams, very cheap move and also one that decide me not to buy that stuff anymore. Instead of Arsenal i had 'North London FC' lool..like it was some 3rd party amateur game.

# 132 jake44np @ 02/03/16 10:46 AM

Quote:

Originally Posted by SpeedyClaxton


	As much as i am fan of basketball and longtime 2k player as well i must admit i wouldn't buy it if they cut it out. Gameplay is always number one but authenticity as well is very high on priority list for me, i don't pay for fake stuff and always target authentic game to buy. That's why i stopped buying PES years ago because they couldn't license teams for their game. They earn each year ridiculous amounts money and they couldn't buy FIFA license for teams, very cheap move and also one that decide me not to buy that stuff anymore. Instead of Arsenal i had 'North London FC' lool..like it was some 3rd party amateur game.

So you don't play Madden or the Show then?
Because they don't have real tattoos??? LOL
Not having tattoos or real tats on players would make no difference to me.
you cant make them out 99% of the time anyway when you are playing the game.

# 133 Junior Moe @ 02/03/16 10:48 AM

Quote:

Originally Posted by cujomatty


	I don't at all understand the "EA is protecting themselves against getting sued" argument. I know most people have forgotten that EA makes a game called NBA live with the same tattoos.

EXACTLY!! EA was sued but NBA Live didn't go tattoo less. I would understand it but they didn't. So what are these guys basing their "get ready to see tattoos gone in 2K" arguments on. This isn't Madden or the NFL.

# 134 Hassan Darkside @ 02/03/16 10:53 AM

I wonder how feasible generic tattoos are. I'm usually not looking closely enough to notice every intricate detail of each player's tattoo. If Amar'e Stoudemire's bicep tattoo said "Korea is Korean" instead of "Knowing is Knowledge" I probably wouldn't even notice unless someone pointed it out. Might be too much work for the art department though.

# 135 jeremym480 @ 02/03/16 10:55 AM

Quote:

Originally Posted by JohnDoe8865


	Could 2K hypothetically use the scanned tattoos and then slightly alter them on the artist side so that they aren't then using the copyrighted IPs? Would that be a realistic workaround, if they decide not to pay? Otherwise, I guess PC gamers can edit them back in.

That's what I'm wondering, as well. Especially, when you consider this:

Quote:

Originally Posted by redsox4evur


	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.

Just make the ones that they don't have the rights to similar, but not 100% accurate. Kind of like how in MLB The Show they used to put a Dalmatian instead of the Chick Fil A cow at Turner Field. Honestly, I couldn't tell you what particular tattoo any player has in the NBA right now, so just throw something similar on all of the copyrighted tattoos and call it a day.

# 136 SpeedyClaxton @ 02/03/16 11:04 AM

Quote:

Originally Posted by jake44np


	So you don't play Madden or the Show then? Because they don't have real tattoos??? LOL Not having tattoos or real tats on players would make no difference to me. you cant make them out 99% of the time anyway when you are playing the game.

I'm not a fan of baseball or NFL, never played them but for basketball it's a part of game just as much as it's real hair and all stuff. You're saying me authenticity doesn't play a role to you, so tell me would you play 2K if LeBron for example is not made authentic but some generic black dude with afro hair ? Please don't get me started..

# 137 Junior Moe @ 02/03/16 11:15 AM

Quote:

Originally Posted by CM Hooe


	Incorrect. The 2K artist created a digital facsimile of the original work of the original artist in a manner that is not transformative. Transformative, in the legal sense of the word, means that the work has changed to a different state or thing, and changing the medium of the artwork is long established as not transformative. Thus the new asset is not an original work and the original artist retains rights to the asset. For example, one can't record the playback of a vinyl AC/DC album on an analog record player to a computer file, burn that file to a CD, and claim that CD as a transformative original work and sell copies of it; you're still selling the intellectual property which belongs to AC/DC. The digital representation of the art also doesn't constitute fair use because it doesn't add anything to the artwork such as commentary or a review. It also (obviously) isn't protected as a parody (which is by definition transformative). This is the precedent under which Electronic Arts has been party to lawsuits for use of tattoos in their sports video games dating back to NFL Street 2.

So did EA secure the rights to every tattoo in NBA Live?

# 138 anthonyf105 @ 02/03/16 11:24 AM

Quote:

Originally Posted by CM Hooe


	Incorrect. The 2K artist created a digital facsimile of the original work of the original artist in a manner that is not transformative. Transformative, in the legal sense of the word, means that the work has changed to a different state or thing, and changing the medium of the artwork is long established as not transformative. Thus the new asset is not an original work and the original artist retains rights to the asset. For example, one can't record the playback of a vinyl AC/DC album on an analog record player to a computer file, burn that file to a CD, and claim that CD as a transformative original work and sell copies of it; you're still selling the intellectual property which belongs to AC/DC. The digital representation of the art also doesn't constitute fair use because it doesn't add anything to the artwork such as commentary or a review. It also (obviously) isn't protected as a parody (which is by definition transformative). This is the precedent under which Electronic Arts has been party to lawsuits for use of tattoos in their sports video games dating back to NFL Street 2.

It's why Grand Theft Auto can have cars in their game similar to their real life counterparts without having to pay the actual vehicle manufacturers. I guess I'm still bitter about these game manufacturers being sued for everything like Ed O'Bannon winning that likeness case and killing off the NCAA series of games which most of us loved. In any case, removing all those tattoos on any of the games won't stop me from buying a great sports game. If 2K came out with legends of college with no tattoos that game would be bought immediately.

# 139 DBMcGee3 @ 02/03/16 11:49 AM

This is absolutely absurd. Are they also filing a suit against DirecTV, ESPN, Fox and CBS for showing these tats on camera every Sunday? What's the difference exactly? It would seem to me that once a player pays a tattoo artist for a tattoo, it becomes the property of the player. It's on his arm for f#ck's sake.

Everybody wants something for nothing nowadays.

# 140 CM Hooe @ 02/03/16 12:12 PM

Quote:

Originally Posted by Junior Moe


	So did EA secure the rights to every tattoo in NBA Live?

The answer to this question has literally no relevance as to the merits of the suit filed against 2K Sports and the publisher's alleged improper misuse of intellectual property belonging to tattoo artists in the NBA 2K video games.

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