Video Game Tattoos Copyright Infringement? NBA 2K Attempts to Close-Out Case

In February 2016, Solid Oak Sketches sued 2K Games and Take-Two Interactive Software claiming that it owned the copyrights to tattoos on several NBA stars, including Lebron James, Kobe Bryant, and Eric Beldsoe. The tattoo designers sought actual damages, statutory damages and attorneys’ fees, but in August 2016, a New York federal judge ruled out the latter two. U.S. District Judge Laura Taylor Swain stated “in order to obtain statutory damages and attorneys’ fees, a plaintiff must have registered its copyright prior to the alleged infringement.” In this case, defendants’ alleged infringement started in 2013 with NBA 2K14, and the tattoo designs weren’t registered with the U.S. Copyright Office until 2015.

The eight infringed-on designs claimed in Solid Oaks lawsuit include a child’s portrait and script scrolls with clouds and doves on Lebron James’ forearms, and butterflies on Kobe Bryant’s arm. After Solid Oaks acquired a copyright to the tattoos named in the lawsuit, Solid Oak offered a license for the tattoos to Take-Two for $1.1 million.

Although Judge Swain dismissed Solid Oak’s claim for statutory damages, a theory that could have cost as much as $150,000 per copyright infringement and reached billions of dollars, Judge Swain did allow Solid Oak to explain why they were entitled to actual damages. On Wednesday, Take-Two Interactive filed a motion for summary judgement to shut down the lawsuit, and Solid Oak’s claim for actual damages.

The motion filed said the appearance of the tattoos in the game is clearly protected by copyright law’s doctrines of fair use and de minimis use, which allows for a tiny amount of a work to be legally used. Take-Two wrote in a letter that “[i]n essence, [Solid Oak] argues that these public figures must seek its permission every time they appear in public, film, or photographs and that those that create new works depicting the players as they actually appear (with their tattoos) should be enjoined and pay damages.”

The current lawsuit taints Take-Two’s recent success with the 2K series, as NBA 2K16’s launch month in October 2015 was proclaimed “the best launch month ever for any sports game” of its generation. Solid Oak tried to base their lawsuit on a recently successful suit by Victor Escobedo, when he was awarded $22,500 for his lion tattoo that was portrayed on UFC fighter Carlos Condit without his permission in THQ’s “UFC Undisputed” game. Escobedo originally asked for $4.1 million. Solid Oaks attempted to use that case to state their actual damages were .55 cents per unit sold. As there are eight tattoos involved in the current case, Solid Oak’s damages would result in 4.4 cents per unit sold. With over 13 million units of NBA 2K16 sold, the value of their damages could be as much as $572,000. It remains to be seen how Judge Swain will rule on Take-Two’s motion.

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