When NBA 2K16 depicted the tattoos of LeBron James, Kenyon Martin, and Eric Bledsoe on its in-game models, it led to a lawsuit from the original tattoo artists. Tattoo company Solid Oak Sketches filed a lawsuit against Take-Two Interactive and Visual Concepts, claiming the companies didn’t license the tattoo designs owned by Solid Oak.
A federal judge has now ruled in favor of the developers, saying that the tattoos make such a minor appearance in the game that copyright can’t be claimed, and that an implied license was granted via the players, according to the Hollywood Reporter.
After a judge refused to dismiss the case initially, James himself testified. “My understanding is that [my] tattoos are a part of my body and my likeness, and I have the right to have my tattoos visible when people or companies depict what I look like. I always thought that I had the right to license what I look like to other people for various merchandise, television appearances, and other types of creative works, like video games,” James said, as reported by the Hollywood Reporter.
U.S. District Court Judge Laura Taylor Swain has agreed with this statement, writing “the undisputed factual record clearly supports the reasonable inference that the tattooists necessarily granted the Players nonexclusive licenses to use the tattoos as part of their likenesses, and did so prior to any grant of rights in the tattoos to Plaintiff.”
Also taken into account is the degree to which the tattoo designs appear in the game. “The tattoos only appear on the players upon whom they are inked, which is just three out of over 400 available players,” Judge Swain wrote. “The undisputed factual record shows that average game play is unlikely to include the players with the Tattoos and that, even when such players are included, the display of the tattoos is small and indistinct, appearing as rapidly moving visual features of rapidly moving figures in groups of player figures. Furthermore, the tattoos are not featured on any of the game’s marketing materials.”
Ultimately the ruling has declared this use of the tattoo designs to constitute fair use as a transformative work. “Here, the undisputed evidence demonstrates that Defendants’ use of the tattoos is transformative,” Swain wrote. “First, while NBA 2K features exact copies of the tattoo designs, its purpose in displaying the tattoos is entirely different from the purpose for which the tattoos were originally created. The tattoos were originally created as a means for the Players to express themselves through body art. Defendants reproduced the tattoos in the video game in order to most accurately depict the Players, and the particulars of the tattoos are not observable.”
This ruling will have an impact on other cases of the same kind–such as a lawsuit also involving Take-Two Interactive and Visual Concepts regarding the depiction of tattoos in WWE 2K16, 2K17, and 2K18. While a judge refused to dismiss this case on March 18, the NBA 2K16 ruling now provides a strong precedent for the defendants.
NBA games have continued to depict the tattoos in contention in installments since NBA 2K16, and NBA 2K18 even offered players the ability to give custom characters their own tattoos.
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