NBA 2K16 News Post

Take-Two Interactive & Visual Concepts Sued By Tattoo Artists

08:16 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

# 61 Dogslax41 @ 02/02/16 09:32 AM

Enough with the logic that the NBA can be sued or NIKE for having them in commercials. The law states that a persons likeness that is captured for a media and broadcast as is, is not eligible for copyright infringement. Since these tattoos are graphically reproduced then a graphic artist has to go through the process of physically copying the original artists work and reproducing it on another canvas. Take a look at the Kobe and Lebron puppet ads or any other animated ad. Notice their tattoos are nowhere to be found. It's crystal clear why this is an issue and broadcasting basketball games or advertisements are not.

# 62 wallofhate @ 02/02/16 10:17 AM

The argument that the person was using is that there are products with player likeness DVDs,posters,cereals, etc with the tattoos showing being showed and sold as the cover of nba 2k has. I know what some may say "that's a photo but 2k is computer generated " well for one thing the cover of 2k is a photo a like the others mentioned and if the argument is "the tatts could be cropped or blurred" couldn't that fit for the other forms of media? Even in game the tattoos are generated from dozens of "cameras" taking "photos" for likenes then implemented into the game. If we're going to say games are under the umbrella of media then it she all get the same pass. But wrong and right and what makes sense has nothing to do with or judicial system most of the time lol so 2k will lose

# 63 jake44np @ 02/02/16 11:02 AM

Its a total money grab, the tat artist will settle out of court for a fraction of what they are sueing for. Just like the guy who sued UFC's game, see below.

This is not the first time a tattoo artist has sued a video-game maker for using his work on an athlete without permission. Tattoo artist Victor Escobedo was awarded $22,500 for his lion tattoo that was portrayed on UFC fighter Carlos Condit without his permission in THQ's "UFC Undisputed" game. Escobedo had originally asked for $4.1 million.

# 64 King_B_Mack @ 02/02/16 11:05 AM

I find it hilarious that one of the tattoos cited is a child portrait on LeBron's arm. How you gonna claim a copyright on someone else's face? I'm assuming it's one of LeBron's kids he had tattooed on his body, so for some random *** company to somehow "got" the rights to these tattoos last year and file a lawsuit looking for damages that includes numbers from before they "got" the rights is pretty ridiculous imo.

Sent from my iPhone using Tapatalk

# 65 ballin2k0 @ 02/02/16 12:02 PM

they should get sued but for their vc and mt tactics...because of your pay to win bs on myteam you will never have anything because of this and in domination you use to be able to build a team through that now all you get is the lowest silver player every time....im done after this year i can only imagine its going to get worse because it does every year they find ways to cutt vc payouts mt is impossible to get...with contracts and shoes to take everything that you could of had...its disgusting and i will no longer support it

# 66 ballin2k0 @ 02/02/16 12:09 PM

oh yea on gaunlet,,,every item has become injury cards and contracts so i geuss ill quit playing that beause after a chore fest 30 min game it really gets to you when all you get is 2 injury cards and a contract fn bs

# 67 anthonyf105 @ 02/02/16 12:24 PM

This tattoo stuff is all crazy. When a person gets a tattoo, they pay the artist for it so it's no longer their property due to the transaction for the work of art. It'd be no different if LeBron was playing with the Mona Lisa he payed for strapped to his back. Smh

# 68 Junior Moe @ 02/02/16 01:08 PM

Quote:

Originally Posted by downsouth


	Why? Now they will settle for pennies on the dollar.

That was me speaking as if everything is on the up and up. The way I understand it is that 2K knew these guys had the rights and put the tats in question in game anyway without their permission. In that case, right is right and 2K should pay them. Now if this is just a money grab and 2K settles for a fraction of that then that's cool, too. But I'm no lawyer. What worries me somewhat is how all this will affect player tats next year and beyond.

# 69 Hooe @ 02/02/16 01:43 PM

Quote:

Originally Posted by anthonyf105


	This tattoo stuff is all crazy. When a person gets a tattoo, they pay the artist for it so it's no longer their property due to the transaction for the work of art. It'd be no different if LeBron was playing with the Mona Lisa he payed for strapped to his back. Smh

This is absolutely not true. The artist owns his work and intellectual property then sells copies of it.

When 2K Sports sells you a copy of NBA 2K - an original product produced by their company, no different than a piece of art produced an artist - you the consumer don't suddenly own the intellectual property of NBA 2K. You own the disc which holds the software, you may play that software on your game console, and you may re-sell your copy, but you don't have the right to mass-produce the game and sell it as your own original work.

# 70 anthonyf105 @ 02/02/16 02:32 PM

Quote:

Originally Posted by CM Hooe


	This is absolutely not true. The artist owns his work and intellectual property then sells copies of it. When 2K Sports sells you a copy of NBA 2K - an original product produced by their company, no different than a piece of art produced an artist - you the consumer don't suddenly own the intellectual property of NBA 2K. You own the disc which holds the software, you may play that software on your game console, and you may re-sell your copy, but you don't have the right to mass-produce the game and sell it as your own original work.

A 2K artist created that tattoo on that virtual arm, the original artist didn't create it. Unless there's a contract between the players and tattoo artist for that likeness and image, I don't know how this is still the artist' property.

# 71 DreamAgain @ 02/02/16 02:34 PM

Well if they take tats out of the game there's always the PC mod community for this kind of stuff =)

# 72 Hooe @ 02/02/16 02:51 PM

Quote:

Originally Posted by anthonyf105


	A 2K artist created that tattoo on that virtual arm, the original artist didn't create it. Unless there's a contract between the players and tattoo artist for that likeness and image, I don't know how this is still the artist' property.

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.

# 73 drugsbunny @ 02/02/16 02:52 PM

I would think one of a few things: A. Are the actual tattoos themselves trademarked patterns designed by the artist themselves and patented? B. Were the tattoos gifts to the players for marketing purposes? C. Did the athletes sign something saying that the tattoos can not be used for marketing purposes? That would almost be like Guitar company suing the Beatles for using their instruments to create music. If Lebron had on a long sleeve turtle neck with a top hat on, I was still buying 2k14. This is quite frivolous to me. I was actually quite upset that I couldn't put tats on my created players in 2k basketball... Now this... I hate people.

# 74 ksuttonjr76 @ 02/02/16 02:53 PM

Well, I guess the NBA and 2K Sports have to redefine the term "player likeness". To me, if 2K Sports is paying a licensing fee to the NBPA/NBA to use the players' " likeness", but the contract language doesn't address tattoos then why is 2K Sports the only one at fault?

# 75 ksuttonjr76 @ 02/02/16 03:01 PM

Quote:

Originally Posted by redsox4evur


	Dude you are missing my point...my point is these guys aren't getting any exposure by having these tattoos in NBA 2K. They aren't mentioned by Take Two or Visual Concepts. And I have never seen a player say on Twitter that he got this tattoo from shop x in city Y. That's all I am trying to say. So Ksutton please tell me who did every tattoo on Birdman's body? This should be an easy question for you to answer because they get all this exposure from Birdman and the companies that create the 2K game. And the only other thing I have said is that they need to get permission from the artist to use it, and after reading through the Kaepernick thread that may not even be true. I am going to do some more research on this before I say they need permission from the artists or not. But I will keep defending that these artists aren't getting exposure from Take Two and Visual Concepts.

You're making this point way too complicated. I'm just talking about plain old visual exposure as in people can see the tattoos without official/organized advertising. It's on the individual to do the research to find out who did the tattoo.

I'm pretty sure people are smart enough to know that tattoo was done by a "famous" artist.

# 76 bcruise @ 02/02/16 03:11 PM

I guess this will finally stop the "why can 2k have tattoos but EA/SCEA can't put them in" talk on their respective boards.

Was only a matter of time.

# 77 jwired21 @ 02/02/16 03:37 PM

This is crazy. By the tattoo artists definition of "ownership" they are basically saying they could also remove the tattoo from the person when ever because they own it. And I mean remove in real life. It's like everything else, a money grab.

# 78 SpeedyClaxton @ 02/02/16 03:47 PM

Well if FIFA can have tatts for soccer players i don't see why it's not possible with nba players.

# 79 Hooe @ 02/02/16 03:52 PM

Quote:

Originally Posted by jwired21


	This is crazy. By the tattoo artists definition of "ownership" they are basically saying they could also remove the tattoo from the person when ever because they own it. And I mean remove in real life. It's like everything else, a money grab.

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.

# 80 Hooe @ 02/02/16 03:56 PM

Quote:

Originally Posted by SpeedyClaxton


	Well if FIFA can have tatts for soccer players i don't see why it's not possible with nba players.

Someone will have to check me on this, but I would assume that any player tattoos which appear in the FIFA soccer video games have the same specific approval from the artist which governs the appearance of player tattoos in contemporary Madden NFL games. Starting with Madden NFL 15, a player appearing in the game must explicitly seek and gain permission from the artist to have his tattoos appear in the game.

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