A U.S. District Court has ruled that Take-Two, the maker of the popular NBA 2K series of video games, has the right to depict NBA players with their tattoos.
The lawsuit was brought against Take-Two back in 2016 by Solid Oak Sketches, a company that had obtained the rights to five tattoos owned by three players—LeBron James, Kenyon Martin and Eric Bledsoe. The suit alleged that Take-Two had replicated the designs that Solid Oak held the copyright on by including them in the NBA 2K video game.
Judge Laura Taylor Swain ruled that because of the way that the tattoos appear in the game, particularly how infrequently they are shown on screen in any detail, Take-Two did not need to receive permission to replicate the artwork.
"The tattoos only appear on the players upon whom they are inked, which is just three out of over 400 available players," Swain wrote in her decision. "The undisputed factual record shows that average gameplay 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."
While one could argue that fans are likely to be playing as the Cavaliers far more than many other teams because James is on the team, the idea that we're talking about three out of hundreds of players seems to have been crucial in Swain's thinking.
This is far from the first case revolving around who owns the likeness rights of a tattoo once it's been placed on skin. During the creation of Madden 15, Colin Kaepernick had all of his tattoos faithfully rendered in the game. In order to do so, Electronic Arts (EA) obtained permission from Kaepernick's artists.
Perhaps the most famous case involving tattoo copyrights is the one involving "The Hangover 2." Posters promoting the movie featured Ed Helms with a face tattoo identical to the one worn by Mike Tyson. S. Victor Whitmill, the artist who tattooed Tyson, claimed copyright infringement against Warner Bros. studios. The case never came to trial as the two sides reached a settlement.
One last interesting wrinkle to the Take-Two case is that the owner of Solid Oak Sketches, Matthew Siegler, is not the tattoo artist responsible for James' tattoos that the case revolved around. What Solid Oak Sketches had done was bought the licensing rights from three artists, then they proceeded with the lawsuit. Two of the artists, Shawn Rome and Justin Wright, told The New York Times that they never intended for there to be a lawsuit and that they had been taken advantage of.
It will be interesting to see what kind of precedent the ruling will set for both the video game industry and tattoo artists.