On June 20, 2016, musician John J. Simon filed suit against Visual Concepts Entertainment and 2K Games Inc., makers of NBA 2K16, for one single cause of action for copyright infringement. In his complaint, Simon alleges that the NBA 2K16 game includes, without his permission, portions of a song he wrote in 1978 for which he received no compensation.
Visual Concepts and 2K Games, subsidiaries of major video-game maker Take-Two Interactive Inc., released NBA 2K16 in September 2015 with the song “Clean Living” by RJD2 as the game’s title track. Simon, a classically trained pianist, jazz musician, and electronic music composer claims that portions — ranging from 1.1 second to 7 full seconds — of his song “Everything You Are to Me” appear in “Clean Living.” Soon after its release in 1978, Simon retained personal control of the song and registered the song with the U.S. Copyright Office in 1979. Simon argues that his song was sampled without any consent and that sampling rose to copying in portions of the recording for the game. Simon claims that this copying is not only affecting sales of his music, which is still available online and in used record stores, but also has created an inability to license the song to anyone since release of the game. Simon is seeking compensatory damages for the lost profits, as well as costs and attorney fees. In its first week Take-Two sold four million copies of NBA 2K16.
This isn’t the first lawsuit Take-Two has had to deal with in regard to the NBA 2K16 video-game. Back in February Tattoo licensing company Solid Oak Sketches sued Take-Two for copyright infringement for their depiction of NBA stars’ tattoos in the game. Solid Oak Sketches claimed that tattoos sported by LeBron James, Kenyon Martin, and Eric Bledsoe were used in the game without their permission. Recently, Take-Two moved to dismiss the claims brought by Solid Oak Sketches.
With the video game industry in a massive period of growth, and eSports taking-off, more and more legal actions like these can be anticipated down the road.