NEW YORK (Reuters) - Take-Two Interactive Software Inc has been hit with a copyright infringement lawsuit over its depiction of tattoos belonging to National Basketball Association stars LeBron James and Kobe Bryant in a popular video game.
In a complaint filed on Monday in Manhattan federal court, Solid Oak Sketches LLC said Take-Two should pay damages for incorporating eight tattoo designs, which the plaintiff had licensed from various artists, into its NBA 2K16 game.
While "the issue of tattoo copyrightability has yet to be decided upon in court due to numerous settlements," the tattoo artists' works are the kind of "pictorial, graphic, and sculptural works" that deserve legal protection, Solid Oak said.
Among the works in question are the words "Hold My Own" on James' left bicep, a crown with butterflies on Bryant's right bicep, and tattoos on the bodies of NBA players Eric Bledsoe, DeAndre Jordan and Kenyon Martin, according to court papers.
Take-Two has said it sold more than 4 million copies of NBA 2K16 in the first week after its release last Sept. 29.
A spokesman, Alan Lewis, said the New York-based company does not comment on legal matters.
The lawsuit seeks a halt to any infringements, plus damages as high as $150,000 per infringement.
It follows what Solid Oak said was an unsuccessful effort to negotiate a licensing arrangement with Take-Two.
In a July 28 letter filed with the court, lawyers for the tattoo artists had offered Take-Two a perpetual license for the eight tattoos in question, in exchange for a $1.14 million fee.
Darren Heitner, a lawyer for Solid Oak, declined to elaborate on the complaint.
The case is Solid Oak Sketches LLC v. Visual Concepts LLC et al, U.S. District Court, Southern District of New York, No. 16-00724.
If it is the tattoo parlour that's filing the lawsuit (not entirely clear whether a big-name licensee is or the tattoo parlour), then it seems to me pretty much like a text-book case of why things like copyrights, trademarks and patents exist in the first place, to help protect the little guy in the event that a bigger fish tries to rip his/her work off.
It also seems to me that the software company had the chance to legally settle the dispute before publishing their game; it's hardly as if the appearance of a particular tattoo in a game is going to make or break its success in the market place. If they thought the price was too high for licensing it (whether the asking price was a bit of a rip-off is another question), they didn't have to include it.
When people take pictures of Kobe, James, etc.... and publish them online, are they required to license the art if it's visible?
Do you honestly think that the average person uploading a pic to FB is similar to a company making a highly profitable product and depicting others' work without their permission in said product?
But no one is buying the product because of the tats. It's a stupid lawsuit.
But no one is buying the product because of the tats. It's a stupid lawsuit.
And one could probably argue that the tattoo in a photograph is incidental, while the inclusion of a tattoo into a program is intentional.So? The publisher is still using the artwork without the permission of the artist.
And one could probably argue that the tattoo in a photograph is incidental, while the inclusion of a tattoo into a program is intentional.
I think it's absurd that you'd have to obtain a license separately for each potential tattoo on someone's body even though you've already paid them to use their likeness.
The player doesn't own the rights to the artwork. If a player likes to wear Nike, you don't get permission from the player to put a Nike logo in your game.
If a tattoo is subject to copyright there has to be some ownership provision for the person to whom the tattoo is applied. Otherwise the copyright holder would hold the right to bar any photograph of the tattooed person that contains the copyrighted material. That would be subversion of the person's rights to their own likeness. So if the tattooed person has any control of their own likeness in relation to the tattoo then the NBA players impliedly gave Take Two permission to display the tattoo vis a vis their permission to display the portion of their likeness containing the tattoo.
Stupid lawsuit is stupid.
The game maker pays the players (through licensing) to use their likeness in the game. Isn't the tattoo part of their likeness?
I think it's absurd that you'd have to obtain a license separately for each potential tattoo on someone's body even though you've already paid them to use their likeness.
The company isn't "ripping off" the tattoo art to see the game, it's simply using an accurate likeness of the athletes playing the game.
Hope this goes nowhere, if successful such a claim could open up all sorts of unexpected other issues. If you post a photo of you and your buddy on facebook and he's got a tattoo on his arm, does that mean you face potential copyright infringement claims?
Isn't the artwork technically owned by the player though? I mean it's their skin, and I'm pretty sure Tattoo parlors were compensated when the player paid for it at the shop.
Do you honestly think that the average person uploading a pic to FB is similar to a company making a highly profitable product and depicting others' work without their permission in said product?