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

# 41 Vni @ 08/04/16 05:13 AM

Quote:

Originally Posted by Junior Moe


	This!!! It's what other games have done and is a win win.

Maybe they could then be sued by the players for not being represented correctly in the game.

# 42 Boltman @ 08/04/16 07:45 AM

Quote:

Originally Posted by Junior Moe


	This!!! It's what other games have done and is a win win.

What are these 'other games' that have slightly adjusted tattoos to avoid legal issues that you speak of?

# 43 aholbert32 @ 08/04/16 08:22 AM

Quote:

Originally Posted by Vni


	What if 2K changed the tattoos just very slightly ?

It would have to be more than just "very slightly." Using the tattoo with a slight change could still be considered a derivative work and run against copyright laws.

Think of it this way. If I took a song without permission, kept the melody and only changed 3 words of the song, the writer of that song would still feel like I used his song without permission, right? Same thing here.

# 44 aholbert32 @ 08/04/16 08:26 AM

Quote:

Originally Posted by Boltman


	What are these 'other games' that have slightly adjusted tattoos to avoid legal issues that you speak of?

If he's thinking about WWE and CM Punk, he's confusing the law. The reason why the Pepsi logo tattoo isnt in WWE games is because of Trademark law not Copyright law.

In Punk's case, 2k is more concerned about Pepsi suing them because it replicated their logo without permission and could lead people to believe that Pepsi is affiliated with Punk, WWE and the game. The tattoo artist who put the Pepsi logo on Punk likely has no copyright protection in the tattoo because recreating the pepsi logo doesnt create an original work of art.

# 45 Junior Moe @ 08/04/16 08:46 AM

Quote:

Originally Posted by aholbert32


	If he's thinking about WWE and CM Punk, he's confusing the law. The reason why the Pepsi logo tattoo isnt in WWE games is because of Trademark law not Copyright law. In Punk's case, 2k is more concerned about Pepsi suing them because it replicated their logo without permission and could lead people to believe that Pepsi is affiliated with Punk, WWE and the game. The tattoo artist who put the Pepsi logo on Punk likely has no copyright protection in the tattoo because recreating the pepsi logo doesnt create an original work of art.

I was actually talking about Live which altered a NY Yankee tattoo on Jr Smith but it's probably the same thing. Still, I don't see what's fundamentally different than altering the Pepsi or NY Yankee tattoo or one done by a local tattoo artist. For instance, LeBrons 1984 tat. 2K couldn't change that to 1985 in a different font and be fine?

# 46 Black Bruce Wayne @ 08/04/16 08:48 AM

After reading this nonsense, just take tattoos out of the game completely. All it is, is a petty money grab from a bunch of tattoo. Also, its a money grab from blood sucking lawyers.

# 47 Junior Moe @ 08/04/16 08:50 AM

Quote:

Originally Posted by Boltman


	What are these 'other games' that have slightly adjusted tattoos to avoid legal issues that you speak of?

Live and WWE and UFC, I think. "Slight" is open for interpretation I suppose but it's obvious what they were changed. It still looked realistic. I didn't even notice until it was pointed out here. I'd be the same with NBA players if it came to that.

# 48 Junior Moe @ 08/04/16 09:00 AM

Quote:

Originally Posted by Black Bruce Wayne


	After reading this nonsense, just take tattoos out of the game completely. All it is, is a petty money grab from a bunch of tattoo. Also, its a money grab from blood sucking lawyers.

IMO, they should just alter them. If the changes were enouh to protect them from billion dollar properties like Pepsi and The Yankees then it should be enough protection from these tattoo artists. Make no mistake, I want everyone to be compensated for their work. I even said as much when this all broke. But if there's a way to do it without running afoul of the law then that works for me too. It doesn't even have to be similar as the ones they did for Punk and Smith. Just put a tat there and I'm good. It ain't that serious to me.

# 49 rhein77 @ 08/04/16 09:17 AM

I think that the artist are being fairly compensated for their artwork by the athletes. Hopefully the players association would require the tattoo artist to sign an art release form to release liability from copyright infringement.

Sent from my iPhone using Tapatalk

# 50 brahmagoul @ 08/04/16 09:43 AM

Accurately depicting a tattoo on an athlete should always fall under fair use. Where a tattoo artist should be able to sue is if a video game lets you put that tattoo on a created player; kind of like the gray area with unlicensed college sports players or legends.

# 51 aholbert32 @ 08/04/16 09:56 AM

Quote:

Originally Posted by brahmagoul


	Accurately depicting a tattoo on an athlete should always fall under fair use. Where a tattoo artist should be able to sue is if a video game lets you put that tattoo on a created player; kind of like the gray area with unlicensed college sports players or legends.

How would that fall under "fair use" using the actual test for determining fair use?

# 52 aholbert32 @ 08/04/16 09:59 AM

Quote:

Originally Posted by rhein77


	I think that the artist are being fairly compensated for their artwork by the athletes. Hopefully the players association would require the tattoo artist to sign an art release form to release liability from copyright infringement. Sent from my iPhone using Tapatalk

Who are you to say what is "fair compensation"? I also think many of you are missing the point. The tattoo artist when he creates a tattoo isnt giving the player the right to copy that tattoo.

Its no different than a painting. If I buy a painting, I own that painting but I dont have the right to have an artist take that paining and create 3 million versions of that painting.

# 53 Boltman @ 08/04/16 10:08 AM

So clear this up for me someone if you can.

Players in the game that had their tatts showing in 2K14 will continue because of this ruling right?

2K was using them before these tattoo artists filed these copywrites.

So let's say the new players coming into the NBA (the rookie class as an example). Will the guys have their tatts in the game? Last year's rookies in 2K16 did right?

# 54 rhein77 @ 08/04/16 10:12 AM

Quote:

Originally Posted by aholbert32


	Who are you to say what is "fair compensation"? I also think many of you are missing the point. The tattoo artist when he creates a tattoo isnt giving the player the right to copy that tattoo. Its no different than a painting. If I buy a painting, I own that painting but I dont have the right to have an artist take that paining and create 3 million versions of that painting.

True... I think that it is safe to say that the artist charge nba athletes more for work than they would charge the average joe. I agree with your premise.

I work in a print world and any photographer who submits work to a stock repository has to sign an art release form prior to giving consent for the platform to sell their work.

Why can't a tattoo artist follow that same model? They have been paid for their artwork and they are getting a platform although virtual to display it.

I can see your point if they made money exclusively from tattoos but this is simply not the case. They are only being used to further enhance realism.

Sent from my iPhone using Tapatalk

# 55 aholbert32 @ 08/04/16 10:35 AM

Quote:

Originally Posted by Junior Moe


	I was actually talking about Live which altered a NY Yankee tattoo on Jr Smith but it's probably the same thing. Still, I don't see what's fundamentally different than altering the Pepsi or NY Yankee tattoo or one done by a local tattoo artist. For instance, LeBrons 1984 tat. 2K couldn't change that to 1985 in a different font and be fine?

The Pepsi/NY Yankees issue is a completely different issue than this lawsuit. In fact it deals with a completely different segment of Intellectual Property law.

Changing the font and the actual number would be more than a slight change and would be a better defense against a copyright infringement suit.

# 56 Boltman @ 08/04/16 10:43 AM

I'm surprised 2K took a chance with Melo's WB tatt on his shoulder. I woulda thought that kinda jives with the Pepsi, NYY tatts.

# 57 aholbert32 @ 08/04/16 10:45 AM

Quote:

Originally Posted by rhein77


	True... I think that it is safe to say that the artist charge nba athletes more for work than they would charge the average joe. I agree with your premise. I work in a print world and any photographer who submits work to a stock repository has to sign an art release form prior to giving consent for the platform to sell their work. Why can't a tattoo artist follow that same model? They have been paid for their artwork and they are getting a platform although virtual to display it. I can see your point if they made money exclusively from tattoos but this is simply not the case. They are only being used to further enhance realism. Sent from my iPhone using Tapatalk

They could but they arent being asked to do so. Its not the tattoo artist's responsibility to make sure that the player, the NBA and 2k can use his artwork.

The "they are getting a greater platform to display their work" argument doesnt work when it comes to artists because anyone could make that argument. I work for one of the biggest television networks in the world and if we were able to use that "greater platform" argument to defend against copyright infringement cases......we would take EVERY popular video on the internet, put it on our air and not pay the owners a dime.

And that would be OK because we could argue "We are one of the biggest networks in the world and we gave the artist a bigger platform to share their work." Even though we didnt pay the artist anything and even though we made millions from the ads that aired during that time. Thats bull****, right?

Most players arent thinking about video game realism when they get a tattoo. They just want a tattoo and arent likely to pay more to get the right to duplicate their tattoo.

2k (which makes HUNDREDS OF MILLIONS OF DOLLARS from this game) could set aside some money and actually attempt to license these tattoos. Most of these tattoo artists would be happy with a couple of grand if that.

You know why 2k doesnt do that? Insurance and the NBAPA.

I think the NBAPA has agreed to indemnify 2k against any likeness related claim and that includes tattoos. So 2k isnt actually footing the bill for this case.

Also if the NBAPA isnt indemnifiying them, 2k likely has an insurance policy that covers claims like this. So 2k only has to pay the deductible (likely under 100k) and their insurer handles the rest. So the only real cost to 2k is the time it takes to help its lawyers defend against the lawsuit.

# 58 aholbert32 @ 08/04/16 10:51 AM

Quote:

Originally Posted by Boltman


	So clear this up for me someone if you can. Players in the game that had their tatts showing in 2K14 will continue because of this ruling right? 2K was using them before these tattoo artists filed these copywrites. So let's say the new players coming into the NBA (the rookie class as an example). Will the guys have their tatts in the game? Last year's rookies in 2K16 did right?

I doubt this lawsuit will affect 2k17 at all. I dont even think it will lead to tattoos not being in the game. Two reasons for that:

- People keep comparing this to the Madden situation but I think Tattoos are more important in basketball than in football from a realism perspective. One reason is because of the jerseys which show the entire arm. Even if 2k lost this suit, I think they would find a way to keep them in.

- I believe the NBAPA has agreed to indemnify 2k against claims of this type so its possible that 2k isnt that concerned about this suit.

# 59 rhein77 @ 08/04/16 11:05 AM

I ultimately want a win win for both sides. Copyright Infringement has eradicated gaming in college sports and as a result, no more games.

It will completely kill the realism for me if tattoos were omitted from future 2k offerings. The people who ultimately suffer are the gamers who want to play a realistic basketball simulation.

Sent from my iPhone using Tapatalk

# 60 Junior Moe @ 08/04/16 11:14 AM

Quote:

Originally Posted by aholbert32


	The Pepsi/NY Yankees issue is a completely different issue than this lawsuit. In fact it deals with a completely different segment of Intellectual Property law. Changing the font and the actual number would be more than a slight change and would be a better defense against a copyright infringement suit.

That's what I was getting at. That way we can keep tats and 2K can avoid the lawsuit stuff. 2k could just do that with all the tats in the game should it come to that. A win win.

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