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

# 81 sane478 @ 08/04/16 12:15 PM

Quote:

Originally Posted by aholbert32


	Huh? You just claimed that I had no knowledge and I just explained to you why I have more knowledge than you. Also based on my job.....I should be on 2k's side. I represent a big corporation. We constantly get sued or threatened to be sued by everyday people based on copyright.

In his defense no one claimed you didn't have any knowledge. I get it completely but we can have a peaceful debate. Back to topic, now that it's been broken down more I definitely understand, almost similar to when games create cities they don't exactly replicate them. Now from a legal standpoint I get it but from a consumer standpoint it's still kind of silly. Also no one said who they can and can't choose to sue but are they going at NBA Live and less popular titles? That's just facts Haha

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# 82 aholbert32 @ 08/04/16 12:16 PM

Quote:

Originally Posted by xx313xx


	Ok, you're a lawyer so it's your job to hold information until an advantageous moment. I get that. Again all could have been said in the initial quote thanks for nothing....

I dont need to tell you my job if I'm gonna post. Here is a tip:

Try to be less aggressive with a statement if you dont really know what you are talking about. Here is a better first post:

"Can someone explain to me why this lawsuit is moving forward? I dont know much about this kind of law but this lawsuit seems like BS"

or you couldve read some of the posts before your first one where I and others explained why this is a legitimate lawsuit.

# 83 rhein77 @ 08/04/16 12:17 PM

This has been a very enlightening thread. My opinion is that this is a witch-hunt from a lawyer who has nothing better to do but go after a billion dollar corporation.

These tattoo artist will be biting the hand that feeds them in the form of free advertisement. The tattoo artist don't complain when they benefit from work shown on shows like Miami Ink, New York Inc. commercials, printed materials etc. It is free advertisement that shows social proof and heightens the notoriety and exposure.

Such a shame we live in such a litigious society.

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# 84 aholbert32 @ 08/04/16 12:20 PM

Quote:

Originally Posted by sane478


	In his defense no one claimed you didn't have any knowledge. I get it completely but we can have a peaceful debate. Back to topic, now that it's been broken down more I definitely understand, almost similar to when games create cities they don't exactly replicate them. Now from a legal standpoint I get it but from a consumer standpoint it's still kind of silly. Also no one said who they can and can't choose to sue but are they going at NBA Live and less popular titles? That's just facts Haha Sent from my iPhone using Tapatalk

Actually he did:

I take it the ones calling me a whining child or ignorant don't know anything either. So, does anybody actually understand this case or are people just white knighting? I want to know how this is not witch hunt

Thats his post and it refers to me because only two people responded to him.

Regarding the other games. Other than Live, I dont think many other NBA games use accurate tattoos. When it comes to EA, we dont know if EA settled this claim before he planned to file a suit. We dont know if EA licensed the tattoo and 2k didnt.

Those would be the only reason EA wouldnt have been named in a seperate suit.

# 85 strawberryshortcake @ 08/04/16 12:21 PM

Aholbert32, hypothetically if 2k releases 2k17 or 2k18 and all players were stripped of their tattoos, and the game either sells the same unit as 2k16 or sells more units than ever in the history of 2k basketball. Does this make any difference whatsoever as far as 2k using the tattoos to "create a profit"?

# 86 aholbert32 @ 08/04/16 12:23 PM

Quote:

Originally Posted by rhein77


	This has been a very enlightening thread. My opinion is that this is a witch-hunt from a lawyer who has nothing better to do but go after a billion dollar corporation. These tattoo artist will be biting the hand that feeds them in the form of free advertisement. The tattoo artist don't complain when they benefit from work shown on shows like Miami Ink, New York Inc. commercials, printed materials etc. It is free advertisement that shows social proof and heightens the notoriety and exposure. Such a shame we live in such a litigious society. Sent from my iPhone using Tapatalk

How is it free advertisement? Lets say i like Kobe's tattoo after seeing it in NBA 2k. How am I supposed to know that "Jim Smith" and Jim's Tattoo Shop in LA is the one that created that tattoo?

How does 2k replicating his artwork make it more likely that people will visit his tattoo shop?

# 87 sane478 @ 08/04/16 12:26 PM

Quote:

Originally Posted by aholbert32


	Actually he did: I take it the ones calling me a whining child or ignorant don't know anything either. So, does anybody actually understand this case or are people just white knighting? I want to know how this is not witch hunt Thats his post and it refers to me because only two people responded to him. Regarding the other games. Other than Live, I dont think many other NBA games use accurate tattoos. When it comes to EA, we dont know if EA settled this claim before he planned to file a suit. We dont know if EA licensed the tattoo and 2k didnt. Those would be the only reason EA wouldnt have been named in a seperate suit.

Oh ok, my fault I didn't see that part when I read it so your right. Regarding EA at least for Madden I read where they had to get rights for some of the tattoos that they used. I'll have to go back and see about Live and etc

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# 88 aholbert32 @ 08/04/16 12:27 PM

Quote:

Originally Posted by strawberryshortcake


	Aholbert32, hypothetically if 2k releases 2k17 or 2k18 and all players were stripped of their tattoos, and the game either sells the same unit as 2k16 or sells more units than ever in the history of 2k basketball. Does this make any difference whatsoever as far as 2k using the tattoos to "create a profit"?

Nope because profit isnt the only factor in a copyright infringement case.

The court looks at it as simple as the tattoo artist owns the artwork and 2k took and duplicate that artwork without permission. If 2k has no excuse for using it without permission...they lose.

# 89 strawberryshortcake @ 08/04/16 12:36 PM

Quote:

Originally Posted by aholbert32


	Nope because profit isnt the only factor in a copyright infringement case. The court looks at it as simple as the tattoo artist owns the artwork and 2k took and duplicate that artwork without permission. If 2k has no excuse for using it without permission...they lose.

(1) Don't know how to exactly phrase this, but does that essentially mean the artist "own" or "claim" (or insert phrase or term) your body part because the artist has inked that particular body part and the person receiving the tattoo or the tattoo artist has not signed a waiver/acknowledgment or whatever document? If this athlete ever wants to do a legitimate artistic photoshoot, etc..

EDIT: Sure the artist can use whatever "platform" (paper, skin, side of a building, etc) to create their artwork, but a "human being" is you know... It just kind of boggles my mind that one can "own" a human being or part of the human being. Shouldn't there be some type of exception when it comes to a human being. ... start buying and selling people ... I don't know... Yes, I know it's still the tattoo's artwork, but the platform is human skin .... I don't know...

(2) Is there a difference between "photographing" and "artistically recreating using pen/paper or adobephotoshop" and "scanning" the tattoo? What if 2k simply took pictures of the tattoos and photoshopped it onto the digital characters body part?

(3) Paparrazzi's taking a picture of athlete (out in public) and just so happens their tattoos are visible. This photograph is sold to a magazine and the magazine either puts the photograph on the cover or within one of the pages within the magazine.

Quote:

Originally Posted by aholbert32


	How is it free advertisement? Lets say i like Kobe's tattoo after seeing it in NBA 2k. How am I supposed to know that "Jim Smith" and Jim's Tattoo Shop in LA is the one that created that tattoo? How does 2k replicating his artwork make it more likely that people will visit his tattoo shop?

# 90 Sheba2011 @ 08/04/16 12:43 PM

If it were me in the market for the Kobe tattoo, I'd probably seek out information on who actually created the tattoo and go from there. Sort of like hearing a fantastic song in a movie or tv show, I'd run an internet search on the song and artist, go buy the song.[/quote]

A lot of people wouldn't go through all that, they would get the picture of the tattoo they want and go to their local shop. The same way a lot of people hear a song, movie or tv show they like and download a torrent. Either way the original artist doesn't benefit from it.

# 91 xx313xx @ 08/04/16 12:46 PM

Quote:

Originally Posted by aholbert32


	I dont need to tell you my job if I'm gonna post. Here is a tip: Try to be less aggressive with a statement if you dont really know what you are talking about. Here is a better first post: "Can someone explain to me why this lawsuit is moving forward? I dont know much about this kind of law but this lawsuit seems like BS" or you couldve read some of the posts before your first one where I and others explained why this is a legitimate lawsuit.

I was never aggressive toward anyone on this site. I never insulted anyone posting. Again as a lawyer your job is convey information better than someone else in order to prove a point . I get that. This is not a court room. Sitting on your perch with information valid to subject and not giving it out when it would have made sense to is what I find vexing. Again thats what you guys do....whatever I'm done with it.

# 92 BluFu @ 08/04/16 01:05 PM

Quote:

Originally Posted by aholbert32


	You werent asking for education. You were making a statement based on little to no knowledge of the law. Now that you are asking for education I will help. The NBA is not copying or creating a derivative version of artwork when it shows a tattoo on TV or in a photo. 2k is creating a derivative version of the artwork when it recreates the artwork in game and puts it on a player. Thats why 2k got sued and not the NBA.

But isn't the NBA still broadcasting art that isn't theirs? You said earlier that tattoos are just like any other art. If the NBA is playing music for one of their TV promos, they need to get the artist's permission correct? TV broadcasters need permission of the movie producers/directors to air their movie right? If tattoos are exactly like these other kinds of art, why does the NBA not need permission from the artists? In those cases I mentioned, the broadcasters are not "recreating" the art but they still need permission to show it because it's not theirs.

Sounds like a slippery slope to be honest.

# 93 aholbert32 @ 08/04/16 01:08 PM

Quote:

Originally Posted by strawberryshortcake


	(1) Don't know how to exactly phrase this, but does that essentially mean the artist "own" or "claim" (or insert phrase or term) your body part because the artist has inked that particular body part and the person receiving the tattoo has not signed a waiver/acknowledgment or whatever document? If this athlete ever wants to do a legitimate artistic photoshoot, etc.. (2) Is there a difference between "photographing" and "artistically recreating using pen/paper or adobephotoshop" and "scanning" the tattoo? (3) Paparrazzi's taking a picture of athlete (out in public) and just so happens their tattoos are visible. This photograph is sold to a magazine and the magazine either puts the photograph on the cover or within one of the pages within the magazine. If it were me in the market for the Kobe tattoo, I'd probably seek out information on who actually created the tattoo and go from there. Sort of like hearing a fantastic song in a movie or tv show, I'd run an internet search on the song and artist, go buy the song.

1) No its different. This is where the 2k case can confuse people. The tattoo artist isnt claiming to own the body part. He isnt even claiming that he owns the tattoo that is on the player's body (he doesnt).

He is claiming that he owns the right to decide if anyone can recreate/copy that tattoo or design. If a photographer takes a picture of the tattoo, he isnt recreating the art.

What 2k is doing is scanning the artwork, manipulating the artwork and adding it to a character within the game. Thats the difference.

2) Yep. Photographing is OK. Scanning and manipulating or recreating is something you need permission for.

3) See above.

4) Re: the Kobe tattoo. That isnt good advertising if I have to go search outside of the game to see who did that artwork. Also good advertising isnt a defense for copyright infringement.

# 94 aholbert32 @ 08/04/16 01:11 PM

Quote:

Originally Posted by xx313xx


	I was never aggressive toward anyone on this site. I never insulted anyone posting. Again as a lawyer your job is convey information better than someone else in order to prove a point . I get that. This is not a court room. Sitting on your perch with information valid to subject and not giving it out when it would have made sense to is what I find vexing. Again thats what you guys do....whatever I'm done with it.

Look man. Sometimes you just have to admit you were wrong. In this case you were wrong. You made an incorrect statement because you know very little about the subject matter.

I've done that before. So has everyone else here.

I gave the info to people before you even posted. You failed to read any previous posts and just made an incorrect statement.

Sometimes you just have to take the L and move on.

# 95 aholbert32 @ 08/04/16 01:17 PM

Quote:

Originally Posted by BluFu


	But isn't the NBA still broadcasting art that isn't theirs? You said earlier that tattoos are just like any other art. If the NBA is playing music for one of their TV promos, they need to get the artist's permission correct? TV broadcasters need permission of the movie producers/directors to air their movie right? If tattoos are exactly like these other kinds of art, why does the NBA not need permission from the artists? In those cases I mentioned, the broadcasters are not "recreating" the art but they still need permission to show it because it's not theirs. Sounds like a slippery slope to be honest.

The tattoo artists claim is because of the recreation. Thats all that matters here.

Remember Lebron owns the tattoos on his arm so he can permit the NBA to broadcast or photograph that tattoos on his arm.

He doesnt own the right to allow someone else to recreate the tattoos on his arm though.

Its the same as if Lebron owned a painting. I can come to his house and take a picture of that painting. But I cant duplicate that painting a million times and sell it without the original artists permission unless that artist has given Lebron and me that right.

# 96 BluFu @ 08/04/16 01:23 PM

Quote:

Originally Posted by aholbert32


	The tattoo artists claim is because of the recreation. Thats all that matters here. Remember Lebron owns the tattoos on his arm so he can permit the NBA to broadcast or photograph that tattoos on his arm. He doesnt own the right to allow someone else to recreate the tattoos on his arm though. Its the same as if Lebron owned a painting. I can come to his house and take a picture of that painting. But I cant duplicate that painting a million times and sell it without the original artists permission unless that artist has given Lebron and me that right.

Ok that clears up a lot. I thought 2K was scanning tattoos for 2K16 though? Is that not the same as taking a picture?

And in your last scenario, are you allowed to sell that picture of the painting?

# 97 aholbert32 @ 08/04/16 01:33 PM

Quote:

Originally Posted by BluFu


	Ok that clears up a lot. I thought 2K was scanning tattoos for 2K16 though? Is that not the same as taking a picture? And in your last scenario, are you allowed to sell that picture of the painting?

Nope because they are scanning and then manipulating and recreating the image within the game. Thats different than just taking a picture.

Selling the picture is where it gets tricky. So if I take a picture of Lebron's living room and the painting is just a small part of the photo, I would have a decent fair use argument.

If my photo only focused on the painting and Im sold the photo, the artist would have a solid argument that the photo is a derivative work and he/she should be paid for using her painting in the photo.

# 98 Black Bruce Wayne @ 08/04/16 02:24 PM

Quote:

Originally Posted by Junior Moe


	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.

I say just take them out. I would not even take a chance to alter them, because the Lawyers would find a way to still sue about that.

# 99 Vni @ 08/04/16 02:27 PM

Can't wait to see them with broken hearts and dolphins on their body in 2K17.

# 100 jfsolo @ 08/04/16 02:32 PM

Quote:

Originally Posted by Black Bruce Wayne


	I say just take them out. I would not even take a chance to alter them, because the Lawyers would find a way to still sue about that.

If I were the publisher that would be my position too. I'd rather have the customers complaining about authenticity 24/7 than have these potential suits always hanging over our heads.

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