Take-Two, the creator of NBA 2K16 Road to the Finals, has drawn first blood in the legal battle against Solid Oak Sketches LLC over unauthorised use of tattoos inked onto the bodies of Kobe Bryant and LeBron James.
Paul George is the face of NBA 2K17.
Let’s hope that the game developers Take-Two Interactive have asked his tattoo artist for permission to copy his art onto the body of the digital avatar version of George otherwise; things might get a little messy.
— NBA 2K 2K17 (@NBA2K) June 2, 2016
Many moons ago, long before eSports was a thing, I held a ‘Game Day’ at my house. Invitees had to bring a game, and contestants paid £25 to enter a competition with the winner taking the entire purse. We also ran a book on the outcome of events.
One of those games was an early version of Electronic Arts (EA) NBA. Everything I know about basketball I learned thanks to EASports. I won the £200 first prize thanks to Scottie Pippen, Charles Oakley, and Michael Jordan.
When eSports exploded in the past few years, I was surprised that the most popular titles were League of Legends (LOL), Dota 2, and Counter-Strike: Global Offensive. I assumed EA would dominate eSports with NBA, NLH, Madden, and the FIFA franchise ruling the roost.
I was wrong.
Last season, the sight of NBA within eSports grew exponentially when the game owners Take-Two created the NBA 2K16: Road to the Finals. It was an idea dripping in brilliance. Anybody could build a team and compete for the $250,000 first prize, with each participant controlling their individual avatar.
It was how I always dreamed eSports to be.
A team called The Drewkerbockers beat Team GFG in the finals to collect the $250,000 first prize.
Everyone was happy.
Well, nearly everyone.
Tattoo Artists Fight For Their Rights
The likeness of digital avatars is incredibly realistic. Fans expect nothing less. The digital artists are excellent at what they do.
Have you ever noticed how many tattoos famous sports stars have inked on their body?
That was a likeness that Take-Two also had to contend with. It’s not an easy task copying body art, but the team does a good job.
Maybe a little too good.
In February, Solid Oak Sketches LLC filed a lawsuit against Take-Two over damage claims for using eight tattoo designs, which the plaintiff had licensed, in the NBA 2K16 game.
The symbols in question included the words ‘Hold My Own” on the bicep of LeBron James, a crown resplendent with butterflies on the bicep of Kobe Bryant, and various pieces of art inked onto the bodies of NBA players DeAndre Jordan, Eric Bledsoe, and Kenyon Martin. Legal papers stated that Solid Oak had tried to reach a settlement of $1.4m for a licensing arrangement and Take-Two had declined.
Solid Oak claims Take Two’s use of the tattoos violates exclusive rights of public display under 17 U.S.C. § 106(5). The papers state that Solid Oak was seeking monetary damages in the region of $150,000 per copyright infringement.
There are a lot of players in the NBA.
That’s a lot of tattoos.
You are talking billions of dollars in damages.
What Does The Law Say?
It’s a grey area, and no other case like this has ever reached a satisfactory judicial ending.
The most highest-profile case to date is tattoo artist Victor Whitmill’s 2011 lawsuit against Warner Bros.Entertainment. The fight took place in Missouri federal court, and the problem was the unauthorised use of Mike Tyson’s famous facial tribal tattoo design used without his permission in the hit movie Hangover II.
It wasn’t the appearance of Mike Tyson that bothered Whitmill – he doesn’t own Tyson’s skin – but it was the use of the tattoo on Ed Helm’s character Stu that ended up with a date in court.
As with most things like this the case ended up being settled out of court leaving the riddle of the use of tattoos without the artist’s permission still unsolved.
Take Two Breath a Huge Sigh of Relief
Earlier today, Take-Two were successful in their bid to dismiss Solid Oak’s claims, after U.S. District Judge Laura Taylor Swain told a Manhattan courtroom that the video game developer cannot be held liable to Solid Oak for statutory damages.
The judge said that Take-Two started using these tattoos in 2014, and Solid Oak registered them with the US Copyright Office in 2015. Although Solid Oak cannot claim for tattoos used before that date, they can pursue damages for the eight symbols that fall within the 2015 copyright, which was added to later versions of the game including NBA 2K16.
Take-Two has sold more than 4 million copies of NBA 2K16, and the NBA 2K16: Road to the Finals was a huge success sure to be replicated in the future with the prize pool just getting bigger and bigger.
A representative from Solid Oak’s legal team said the case would continue, and they are looking forward to explaining why they are entitled to actual damages.’
NBA 2K16 has become a popular eSports for gamblers, and a broad range of third party sites have been created allowing players to compete against each other for cash prizes.