NBA 2K17 News Post

Some Potential Damages in NBA 2K Tattoo Lawsuit Have Been Dismissed

05:28 PM - August 3, 2016 by RaychelSnr

It appears the folks at 2K won a major legal challenge against the use of tattoos in NBA 2K16:

Quote:


	2K and parent company Take-Two can breath a sigh of relief following the dismissal of some requested damages in a lawsuit that might have cost the company billions. A case brought by tattoo designer Solid Oak Sketches attempted to secure statutory damages of $150,000 per infringement for unauthorized use of eight designs in NBA 2K16. United States district judge Laura Taylor Swan granted 2K�s motion to dismiss statutory based on timing of the design copyright. The first use of the tattoo images was in 2013�s NBA 2K14. The designs were not copyrighted until 2015.

As we reported on back in February, this suit is exactly why other games don't really use player tattoos unless they are fully licensed.

2K won this challenge on a technicality, which could have cost Take Two upwards of a billion dollars in damages. However, it is likely that tattoos in NBA 2K (and other sports games) will continue to grow scarcer due to copyright and licensing issues.

Take Two is still potentially on the hook for some damages in the case so they aren't out of the woods yet, however the total damages they may have been on the hook for has lessened considerably after today's ruling.

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Member Comments

# 121 strawberryshortcake @ 08/04/16 10:59 PM

Quote:

Originally Posted by HowDareI


	I understand what he means by if Home Depot sold the hardwood floor to the Sixers or any team do they (Home Depot, or the manufacturer) technically own it...well no, because Home Depot is a retailer and their job is to sell you things that you're allowed to use anywhere you want; store, home, etc. .

I was actually referring to joe smith or bob smith that designs the hardwood. Home Depot is simply offering shelf space. I was questioning the "design" and if or why wouldn't this be the same as what's going on with tattoos. Some type of creativity was still used to create the hardwood design. If not copyright, can't you patent the design? Or what's the difference? And if a video game recreates the actual hardwood design without permissuon from the smiths, why wouldn't it be the same.

# 122 HowDareI @ 08/04/16 11:01 PM

I'm just saying a work of art meaning something drawn or painted onto a canvas is a one-off thing; they've transferred their vision into reality..

You sign it, copyright it, whatever...it belongs to you. Unless that piece of paper becomes a living breathing being and says it's theirs...but seriously tho..

I just can't see that replicating something inked onto someone is illegal as being legitimate..

Different views I guess...and the law says otherwise. But then again I don't agree with tons of laws so...

# 123 nuckles2k2 @ 08/04/16 11:47 PM

Quote:

Originally Posted by HowDareI


	I'm just saying a work of art meaning something drawn or painted onto a canvas is a one-off thing; they've transferred their vision into reality.. You sign it, copyright it, whatever...it belongs to you. Unless that piece of paper becomes a living breathing being and says it's theirs...but seriously tho.. I just can't see that replicating something inked onto someone is illegal as being legitimate.. Different views I guess...and the law says otherwise. But then again I don't agree with tons of laws so...

I think it's because people keep focusing on the ink as opposed to the artwork. The ink could exist regardless. I know a girl who literally tried to give herself a tattoo when she was younger with some pen ink & a needle (don't ask, cuz I couldn't even begin to explain it...)

But if it were not for that artist designing the artwork (studios would do this well before it's actually inked on the person), that still belongs to the artists.

I would love to know how many of the NBA players in question have the original, likely signed, works of art -- in some sort of print medium -- in their possession.

Unless we know for a fact that the players paid for the artwork (be it designed either by hand, or in Illustrator/Photoshop/etc) as well as the tattoo artist's expertise & time/labor... I don't see what the big misunderstanding is.

Artwork can exist without it being a tattoo. If the tattoo artist sells their time (that's what any paid job is) and their expertise (what any contractor/service provider does) how does that suddenly transfer ownership of the intellectual property?

It's not even really about the laws. It's about being told that you designed something, and someone is saying I can use your design in a commercial product without saying a single word to you. Not something happenstance like a captured image, but the deliberate act of making sure they replicate every detail, every angle, precisely as you did back when you were in the lab creating it. But with no permission, no attribution, nothing.

That flies?

I agree that the timing might be a little weird. But the principle of the matter is...get permission if you're going to use it, especially commercially.

# 124 nuckles2k2 @ 08/04/16 11:55 PM

Basically:

tattoo =/= artwork.

It's a tattoo OF the artwork.

If the artwork is purposely recreated digitally, because the artwork appears on a person, & everyone wants authenticity & realism.. Get permission. Otherwise you'd have to spoof the artwork like Madden did back on the PS2.

# 125 aholbert32 @ 08/05/16 12:49 AM

Quote:

Originally Posted by strawberryshortcake


	I was actually referring to joe smith or bob smith that designs the hardwood. Home Depot is simply offering shelf space. I was questioning the "design" and if or why wouldn't this be the same as what's going on with tattoos. Some type of creativity was still used to create the hardwood design. If not copyright, can't you patent the design? Or what's the difference? And if a video game recreates the actual hardwood design without permissuon from the smiths, why wouldn't it be the same.

The design of hardwood is not the same as tattoos. Creativity alone does not mean that something is a work of art.

You could potentially patent the design. You could also potentially trademark the design. Patents cover products or inventions. Trademarks cover logos and marks that are synonymous with a brand or business. Patents prevents some from creating the exact same or substantially similar product (2k is not creating actual hardwood when it puts it in a game). If the design of the hardwood was trademarked by Joe Smith (which is very difficult to do in this case) it could have a case against 2k.

With that said, none of those are even a close comparison to this tattoo case.

# 126 aholbert32 @ 08/05/16 12:53 AM

Quote:

Originally Posted by HowDareI


	I'm just saying a work of art meaning something drawn or painted onto a canvas is a one-off thing; they've transferred their vision into reality.. You sign it, copyright it, whatever...it belongs to you. Unless that piece of paper becomes a living breathing being and says it's theirs...but seriously tho.. I just can't see that replicating something inked onto someone is illegal as being legitimate.. Different views I guess...and the law says otherwise. But then again I don't agree with tons of laws so...

You own a copy of that tattoo.

You dont own the artwork or the right to give people (or corporations like 2k) the right to copy or create derivative works of that artwork.

Now if you create the artwork and you go into a tattoo shop and ask them o put that on your arm....you own the artwork.

# 127 Schibling @ 08/05/16 01:55 PM

if theres no tattoos i wont buy the game simple fact. the company that is suing bought the rights to these tattoos after the fact which is stupid.

# 128 sportjames23 @ 08/05/16 03:48 PM

Quote:

Originally Posted by wallofhate


	Funny thing is that there isn't a tattoo artist out there that wouldn't tattoo a Disney,marvel or dc character. If one of those entities started going after the tattoo artists they'd be crying corporate hatred and complaints of big business bothering the "lil guy". I get it they "can" sue but I grow tired of silly lawsuits that coattail off of bigger cases that are actually significant. I watch a video about lawyers suing app makers because they own the patent to making apps not copying the same type of app but they own the idea of an app smh.

Great freakin point. I almost wish one of these big companies would go after some of these tattoo artists just to see their reactions.

# 129 aholbert32 @ 08/05/16 03:53 PM

Quote:

Originally Posted by sportjames23


	Great freakin point. I almost wish one of these big companies would go after some of these tattoo artists just to see their reactions.

That would make no sense and would not lead to anything. If Disney sues a tattoo artist, they spend money to file suit and best case scenario settle for less money than it cost to file the suit.

# 130 mcpats @ 08/07/16 08:24 AM

aholbert32 I appreciate your knowledge and insight into this topic, but I find so many things puzzling here. I get 'art is art'. But when you take that art and apply it to a human body you are effectively engaged in an elective procedure to change someone's appearance, just like teeth whitening, a haircut, laser hair removal, or plastic surgery. You are altering an individual's skin pigmentation, and it doesn't matter if it's in the form of an original design or it's one color, a person's pigment is their likeness and they have a right to license their own likeness. Shouldn't matter if it's for a photo, painting, or digital recreation.

# 131 aholbert32 @ 08/07/16 10:41 AM

Quote:

Originally Posted by mcpats


	aholbert32 I appreciate your knowledge and insight into this topic, but I find so many things puzzling here. I get 'art is art'. But when you take that art and apply it to a human body you are effectively engaged in an elective procedure to change someone's appearance, just like teeth whitening, a haircut, laser hair removal, or plastic surgery. You are altering an individual's skin pigmentation, and it doesn't matter if it's in the form of an original design or it's one color, a person's pigment is their likeness and they have a right to license their own likeness. Shouldn't matter if it's for a photo, painting, or digital recreation.

Let's argue the flip side: if I get a tattoo of Mickey Mouse on my arm, does that mean I have the right to give 2k the right to duplicate it?

Disney has created Mickey over 60 years ago but because I decided to put it on my body, I get the right to give corporations the right to duplicate their art?

# 132 King_B_Mack @ 08/07/16 10:45 AM

I do think the tattoo artists deserve to have their work protected here, but I don't like the idea of one side of this equation having to play by the rules while the other doesn't. Not every tattoo that these guys do are their designs. A lot of people design their own artwork, take it to the tattoo shop and have the artists put it on them. If someone comes into a tattoo shop saying they want the tattoo that X player has (that that player happened to design himself) is the tattoo artist really turning away that business because he's recreating someone else's work? Suddenly the morals of copyright protections/trademarks or whatever go right out the window. If you're worried about not being able to profit off someone else's art then do that at all times.

Sent from my iPhone using Tapatalk

# 133 mcpats @ 08/07/16 02:15 PM

Quote:

Originally Posted by aholbert32


	Let's argue the flip side: if I get a tattoo of Mickey Mouse on my arm, does that mean I have the right to give 2k the right to duplicate it? Disney has created Mickey over 60 years ago but because I decided to put it on my body, I get the right to give corporations the right to duplicate their art?

In your Mickey scenario the tattoo itself was executed illegally which definitely changed the scenario, and you would know much better than myself what that would entail legally.

How about a different scenario? Suppose I was working for a graphic design firm but on my own time I created a killer graphic that I had trademarked. Now if it was discovered later that I used a work computer on work time to make some adjustments to that design, wouldn't that change the claim to ownership? It's the same design using the same methods but the time and location play a huge deal regarding the intellectual rights. If a copywrited image is painted on a canvas or wall it's one thing. But if you change the environment in which that art is executed (I.e. a person's body) than it also changes the equation. You have introduced an individual whose rights to their own body and appearance supersede a trademarked image IMO

# 134 mcpats @ 08/07/16 02:20 PM

One other question, and the Mickey mouse idea made me think of this again, but why is 2k the defendant in this case and not the player and/or player's union?

# 135 aholbert32 @ 08/07/16 04:03 PM

Quote:

Originally Posted by mcpats


	In your Mickey scenario the tattoo itself was executed illegally which definitely changed the scenario, and you would know much better than myself what that would entail legally. How about a different scenario? Suppose I was working for a graphic design firm but on my own time I created a killer graphic that I had trademarked. Now if it was discovered later that I used a work computer on work time to make some adjustments to that design, wouldn't that change the claim to ownership? It's the same design using the same methods but the time and location play a huge deal regarding the intellectual rights. If a copywrited image is painted on a canvas or wall it's one thing. But if you change the environment in which that art is executed (I.e. a person's body) than it also changes the equation. You have introduced an individual whose rights to their own body and appearance supersede a trademarked image IMO

Lets say it wasnt. Lets say that Disney has given license to certain tattoo artists to do MM tattoos. The artist has the right to draw MM. Does that give the person who gets the tattoo the right to grant corporations the right to recreate MM?

To your example:

- Trademark and copyright are completely different things. The tattoo situation in 2k is a copyright issue.

- Your company would claim it owns the copyright to that killer design. Why? One, you are an employee and have likely agreed that any work you do using equipment owned by the your job, the copyright is owned by your job. I signed a similar agreement when I started my job. If you didnt sign an agreement, the copyright remains with you.

- The enviornment doesnt effect copyright at all. None at all. If I create an image and I put it on a wall....its copyrighted. On canvas....its copyrighted. On TV....its copyrighted. On a person, its copyrighted.

Since its copyrighted, I own the right to decide who can copy my image.

- Likeness rights do not trump copyright rights.

# 136 aholbert32 @ 08/07/16 04:05 PM

Quote:

Originally Posted by mcpats


	One other question, and the Mickey mouse idea made me think of this again, but why is 2k the defendant in this case and not the player and/or player's union?

2k is the company that actually copied the image not the player or the player's union. Depending on their agreement with the player's union, 2k could say that the NBAPA guaranteed that all tattoo rights were cleared. If thats true, 2k can counter sue the NBAPA or ask them to indemnify them from the claim.

# 137 mcpats @ 08/07/16 04:34 PM

Thanks for setting me straight on TM and copyright, didn't realize the mistake I was making.

Does the law you are talking about specifically mention tattoos or is it inferred? I ask because in my world I see a BIG difference between a canvas and a human arm. I might be in the small minority but I think it's equally as valid to classify a tattoo as a cosmetic procedure vs. art. Tattoos are the only art I know of that require a license to practice, sterilized equipment that pierce human tissue, and are governed by the Department of Health.

# 138 aholbert32 @ 08/07/16 04:48 PM

Quote:

Originally Posted by mcpats


	Thanks for setting me straight on TM and copyright, didn't realize the mistake I was making. Does the law you are talking about specifically mention tattoos or is it inferred? I ask because in my world I see a BIG difference between a canvas and a human arm. I might be in the small minority but I think it's equally as valid to classify a tattoo as a cosmetic procedure vs. art. Tattoos are the only art I know of that require a license to practice, sterilized equipment that pierce human tissue, and are governed by the Department of Health.

No problem.

Court cases have determined that tattoos are considered works of art and protected under copyright law. It doesnt matter if its on a canvas or an an arm...art is art.

# 139 mcpats @ 08/07/16 06:17 PM

Quote:

Originally Posted by aholbert32


	No problem. Court cases have determined that tattoos are considered works of art and protected under copyright law. It doesnt matter if its on a canvas or an an arm...art is art.

Well as a Patriots fan unfortunately I am aware that court decisions can be overturned

# 140 aholbert32 @ 08/07/16 07:17 PM

Quote:

Originally Posted by mcpats


	Well as a Patriots fan unfortunately I am aware that court decisions can be overturned

I don't think these will. It's hard to argue that original designs of tattoos aren't forms of art. Especially since where the art was created doesn't matter.

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