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In the realm of sports video games, realism is king. Gone are the days of players catching fire or being run over by ambulances. Now gamers want the most true-to-life graphics and game play, all the way down to the players' tattoos. Which can be a problem, legally-speaking.
As a new lawsuit against the makers of NBA2K has demonstrated, figuring out who has the legal rights to a player's ink can be a little tricky.
Solid as an Oak
The lawsuit comes from Solid Oak Sketches, a company that signed copyright license agreements with the tattoo artists that created the ink for LeBron James and Kobe Bryant. Solid Oak is claiming that the tattoos are copyrightable and that Take-Two, the company behind NBA2K franchise, refused to license the tattoos from Solid Oak before using them in the latest release.
Solid Oak originally offered to license the tattoos for $1.1 million, and its lawsuit is seeking an injunction against NBA 2K16's use of the tattoos and $150,000 per copyright infringement. Considering the suit identifies at least six tattoo designs being infringed upon and more than four million copies of NBA 2K16 were shipped in its first week alone, that could amount to a hefty price tag.
On Shaky (Legal) Ground?
Darren Heitner, whose firm is representing Solid Oak told ESPN, "It's clear that they knew that this was something that was to be negotiated," referring to the failed attempts to get Take-Two to pay to use the tattoos. Heitner also said that, without some sort of waiver, it is legally presumed the tattoo artist owns the work despite its existence on an athlete's body. And he's probably not wrong.
In 2012, artist Victor Escobedo sued THQ for using his lion tattoo on UFC fighter Carlos Condit in its "UFC Undisputed" game without his permission and was awarded $22,500. And two years later the NFL Players Association advised players to get waivers from their tattoo artists in case the artwork was used in video games or merchandise. So Solid Oak probably has a pretty good case.
After all, if tattoos are protected by the First Amendment, why not by copyright law?