'NBA 2K' Videogame Publisher Wants Judgment Allowing Use of Player Tattoos

NBA FInals - LeBron James - H GEtty 2016
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Having won the first round of a legal battle over tattoo copyrights, Take-Two Interactive Software is now seeking a judicial declaration that could be significant across the entertainment landscape. In counterclaims filed on Tuesday, the publisher of NBA 2K submits that its use of tattoos seen on the bodies of LeBron James, Kobe Bryant and other players is both fair use and de minimis use. Additionally, the videogame company asserts that the tattoo licensor has committed a fraud on the U.S. Copyright Office.

In February, after obtaining rights through agreements with tattoo artists and offering Take-Two a perpetual license for a fee of $1,144,000, Solid Oak Sketches filed its copyright infringement lawsuit.

Unfortunately for the plaintiff, a judge ruled earlier this month that failure to timely file for copyright registrations meant that Solid Oak couldn't recover statutory damages and fees. As the lawsuit moves forward, Solid Oak is still pursuing actual damages.

The liability, however, is now far less for Take-Two, and given the risks and upsides in proceeding, the defendant appears to be shooting for the moon. Ever since Mike Tyson's tattoo artist asserted and settled claims over The Hangover Part II, there's been ample discussion and confusion about the possible need to license tattoos appearing in creative works. 

"Copyright law does not stretch so far," states Take-Two's latest court papers. "Indeed, if Solid Oak were correct, it would mean that anyone appearing in public, on a television program, or in an advertisement would need to license the display of their tattoos. This is not the law and, if it were, it would be an encroachment on basic human rights."

The videogame publisher points out in a well-decorated cross-complaint (see below) that NBA players are frequently photographed and that tattoos are visible in telecasts of games as well as in news articles.

"When the Tattoos were inked, the tattooists knew that the individuals that they were inking would appear in public," writes Take-Two's attorney Dale Cendali, adding that the tattoo artists like Shawn Rome knew that players like James would seek to commercialize their likenesses and that until 2015, they never asserted that display of tattoos required a license.

The cross-complaint then goes on to make the case that the tattoos appear "only fleetingly" and "not emphasized" in NBA 2K. Further, that the tattoos aren't said to not be depicted other than on real-life individuals and aren't being sold separately, either by Take-Two or Solid Oak. As such, with further arguments how the videogame is not a market substitute for the tattoos and more, the defendant seeks the judge's declaration of a fair use to these tattoos.

Take-Two goes into detail about the derivation of the tattoos on the players — including Kenyon Martin, DeAndre Jordan and Eric Bledsoe — and most seriously, discusses the "Lion's Head Tattoo Artwork" on James.

According to court papers, this tattoo was inked on James' right bicep in 2000 by Rome when the future NBA superstar was then 16 years old. But Take-Two asserts that tattoo was later changed so that some features like a crown were no longer visible. Other tattoo artists besides Rome are said to have added additional detail in later years.

Take-Two asserts that the changed tattoo design is what's been submitted to the Copyright Office for registration and is what is appearing in its game.

"The copyright registration for the tattoo titled 'Lion’s Head Tattoo Artwork' (Reg. No. VA1971674) was improperly obtained because a specimen was submitted of a work that Shawn Rome, the claimed author, did not create on the listed creation date of 2000," states the counterclaim asserting fraud. "This knowing failure to disclose the actual deposit to the Copyright Office constitutes fraud on the U.S. Copyright Office as the proper specimen was required to be submitted reflecting the actual work Mr. Rome allegedly authored on that creation date."

Here's the defendant's full answer and counterclaims: