Feb201602
Videogame Maker Sued for Copyright Infringement Over Basketball Stars' Tattoos
01:49 PM
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More interesting news on the tattoo copyright front, which you know I love as a lawyer and tattoo nerd!

On Monday, a lawsuit was filed in federal court in New York against Take-Two Interactive and other companies associated with the video game NBA 2K16 for reproducing the tattoos of the basketball stars featured in the game series without permission.

The suit was filed by Solid Oak Sketches, a company who licensed the tattoo designs from the following artists who tattooed stars like Lebron James and Kobe Bryant:  Justin Wright (LeBron James), Shawn Rome (LeBron James), Tommy Ray Cornett (Eric Bledsoe and Kenyon Martin), Robert Benedetti (Kobe Bryant), and Leslie Hennelly (DeAndre Jordan). More on the licensing deal later in this post.

The lawsuit filing, Solid Oak Sketches v Take-Two, can be found here.

Ok, let me break this down:

While I've been writing about tattoo copyright since 2003, the discussion of tattoos being protected under copyright law didn't really get much buzz until 2011, when the infamous Mike Tyson Tattoo Copyright case was filed. I wrote about that extensively here, here, and here.

In that case, the tattooist who tattooed Tyson's facial tattoo, Victor Whitmill, sued Warner Bros. for copyright infringement in prominently featuring his tattoo design in The Hangover 2 and its advertising. The case,
S. Victor Whitmill v. Warner Bros., settled for an undisclosed amount, soon after Judge Catherine D. Perry, who presided over the preliminary injunction phase, stated: "Of course tattoos can be copyrighted. I don't think there is any reasonable dispute about that . . . . [T]he tattoo itself and the design itself can be copyrighted, and I think it's entirely consistent with the copyright law."

Fast forward to July this past summer, when the lawyer for Tyson's tattooer, Michael Kahn, reached out Take-Two Interactive to reach a deal on behalf of the tattooers. As noted in Bloomberg Business:
Kahn offered to drop the threat of legal action against Take Two in exchange for $819,500, covering the use of eight tattoos in the 2014 and 2015 versions of the game, according to a copy of the letter filed with the complaint. The law firm also offered a perpetual license covering 2016 and beyond for $1.44 million.

Kahn's law firm, Capes Sokol Goodman & Sarachan PC, said it calculated the offer based on figures from an unrelated case in which a tattoo artist was awarded $22,500 for the unauthorized use of one of his works in a video game by THQ Inc. In that case, a lion tattoo over the rib cage of Ultimate Fighting Championship champion Carlos Condit was used in THQ's UFC Undisputed, which sold 4.1 million copies, the law firm said.

You can find the letter and the breakdown of the interesting math used to reach these numbers in the exhibits to the lawsuit filing.

Take-Two declined the offer, which lead to this filing (by another law firm, not Kahn's). What I found particularly interesting in this complaint (demand for jury trial) is how the Solid Oak lawyers note just how important the tattoos play out in the game:  "On social media, 2K has promoted the improved tattoo customization as a major feature in the game." "Game reviewers praised NBA 2K16's improved visuals, which included smoother looking character models and more individualized tattoos." I think a jury will pay some attention to these claims.

I'm guessing, however, that the case will settle as other tattoo copyright cases have.

And then we'll probably see the NBA get after their players to get releases from their tattoo artists to the rights to their tattoos -- just as the NFL did in August 2013.

When artists and athletes come to agreements on tattoo artwork, it can be a win-win, as we saw with quarterback Colin Kaepernick, who got written permission from his tattoo artists to feature his tattoos in the Madden video game franchise. More on that deal here.

So, what kind of deal are we talking about for tattoo artists licensing their art? In the exhibits to the complaint filing, you'll find the licensing agreements between the tattooers and Solid Oak. In them, the artists get 8% of the net earnings of Solid Oak for their designs. I've seen licensing agreements go for more, but it depends on the deals and also how good your lawyer is.

The lesson here is that the rights of tattoo artists are being taken more seriously -- and even more so with every suit filed.

For more on my writing on tattoo copyright in the US check these links:



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