'NBA 2K' Videogame Maker Sued for Copyright Infringement Over LeBron James' Tattoos

Take-Two Software is taken to court by a company that demanded more than $1.1 million for a license to eight tattoo designs.
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A new lawsuit addresses an uncertain legal issue that's been stained in the minds of the public ever since Mike Tyson's tattoo artist sued in 2011 to stop the release of Hangover 2.

The action was filed on Monday in New York federal court by Solid Oak Sketches, which claims to own copyright to several tattoo designs featured on the bodies of NBA stars LeBron James, Kobe Bryant, Kenyon Martin, DeAndre Jordan and Eric Bledsoe. Solid Oak is suing Take-Two Interactive Software and other companies associated with the videogame NBA 2K16 for unauthorized reproductions of those tattoo designs.

The question over whether tattoo designs are copyrightable has never been fully decided by a court, as acknowledged in the new lawsuit. Victor Whitmill's lawsuit against Warner Bros. over Hangover 2 settled as has other disputes including one by a tattoo artist, Christopher Escobedo, who inked a UFC fighter and later asked a bankruptcy court to determine the value of his tattoo claim against videogame publisher THQ.

On one hand, copyright law protects original works of expression fixed in a tangible medium. In the Whitmill case, before it settled, the judge commented, "Of course tattoos can be copyrighted. I don't think there is any reasonable dispute about that." An opinion was never issued, however. In the THQ case, Escobedo was awarded $22,500 for his lion tattoo.

Then again, it could be argued that tattoo appropriation in an expressive work is de minimus.

Solid Oak Sketches argues that the tattoo designs "easily satisfy" a standard for originality. The designs — including a child portrait on LeBron James' inner left forearm, a crown with butterflies on Kobe Bryant's right bicep and a script with a scroll on DeAndre Jordan's right shoulder — were created by tattoo artists Shawn Rome, Justin Wright and Tommy Ray Cornett, who according to the complaint, signed copyright license agreements with the plaintiff. As for fixation, Solid Oak Sketches argues that the designs "are imprinted permanently upon the skin of humans, clearly stable and able to be perceived for much more than a transitory duration."

The full complaint is below.

The plaintiff, represented by Matthew Spritz and Heitner Legal, also cites scholarly journals and says the United States Register of Copyrights has issued certificates of registration for the tattoo designs.

In a demand letter to Take-Two before the lawsuit was filed, an attorney for the plaintiff took the $22,500 award to Escobedo, and using information about NBA 2K16 sales, calculated that the value for the eight tattoos should be $572,000. But there was also the matter that two of LeBron James tattoos were featured on the cover of the videogame. According to the letter, "Given that those two tattoos are 'the face' of the 2014 game, their marketing and promotion value is, conservatively, at least four times the value of the rest of the tattoos."

Thus, the claimed value of using all of the tattoo designs in question allegedly equals $819,500. That tattoo design company offered a perpetual license for a fee of $1,144,000.

Presumably, Take-Two declined the offer. The company declined to comment about the lawsuit, which demands injunctive relief and monetary damages.

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