'NBA 2K' Videogame Maker Fights Lawsuit Over Copyrighted Tattoos

LeBron James -2016 NBA Playoffs -H 2016
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LeBron James has more than 40 tattoos on his body. Some of those tattoos have been with him for years. That's now a factor in a copyright lawsuit targeting Take-Two Interactive Software over the videogame NBA 2K16.

In February, Solid Oak Sketches sued Take-Two over unauthorized reproductions of tattoo designs in NBA 2K16. The plaintiff made deals with various tattoo artists who had inked NBA stars and have obtained certificates of registration from the United States Register of Copyrights. The lawsuit claims infringement arising from the avatars of James, Kobe Bryant, Kenyon Martin, DeAndre Jordan and Eric Bledsoe.

Tattoo design misappropriation remains a very murky subject in copyright law, and Take-Two could eventually seek to get a judge to find the tattoos in NBA 2K16 to be fair use. Or maybe the case settles. If so, it's important to know potential damages in this novel dispute. 

Take-Two has now filed a motion to determine the limited issue of whether Solid Oak Sketches is entitled to statutory damages and attorneys' fees. There are eight works at issue here so in theory, statutory damages could be worth up to $1.2 million. That's also on par to the suggestion by the plaintiff that the value of a perpetual license for the tattoo designs is $1,144,000.

Under copyright law, registration is a prerequisite to receive statutory damages, but the NBA 2K16 lawsuit is exploring some nuance.

According to Take-Two's court papers (here), it has been depicting James, Martin and Bledsoe — and their tattoos — in its NBA 2K videogame series since at least 2013. Solid Oak registered copyrights in June and July of 2015.

"Here, where the same work has allegedly been infringed by the same defendant in the same manner since 2013—long before registration—binding Second Circuit precedent dictates that statutory damages and attorneys’ fees are unavailable," argues Take-Two's attorney Dale Cendali.

On Friday, Solid Oak Sketches responded to the argument by asserting that "each wrong gives rise to a discrete claim that accrues at the time the wrong occurs" and holding up 2K16 as a "separate work from all prior versions of the video game series."

The reply brief (here) from attorney Darren Heitner even contains photos of two different Kobe Bryant game avatars to show how far along the graphics have come in various versions of the game to support the proposition that NBA 2K16 is a new work triggering a discrete claim. There's also arguments directed at post-registration acts of infringement, and while the case gets a little wonky, that's hardly unexpected when dealing with a dispute involving the non-transitory nature of what's put on the skin of humans.