The popular video game, NBA 2K17 boasted it’s realism and details. But those details are getting them into trouble.
Take-Two Interactive Software Inc, the makers of the NBA 2K video game series, is facing a lawsuit over its depiction of LeBron James’ tattoos.
The artists who inked King James claim they own the copyright to the tattoo designs. They say that the use of their designs in the game violates their copyright. The tattoo shop is seeking compensation since Take-Two Interactive didn’t license the designs.
The lawsuit brings up interesting questions about tattoo ownership. Some argue that LeBron should own the tattoo since it’s on his body.
Who Owns A Tattoo?
This may not be exactly the right question. Most people who get a tattoo would call a tattoo their own. After all, they paid for it, and it’s on their body. No one shows off a new tattoo and says it belongs to a local tattoo artist.
An idea a little easier to wrap clear parameters around is who owns the design. The question here is who owns the tattoo design. Do you own the design when buying a tattoo?
If you look at it in other art forms, like paintings, a tattoo is more like buying a reprint than buying an original piece. The artist creates the original piece as a sketch, which they reproduce on your body as a tattoo. When you get a tattoo, you are buying the tattoo, not the design.
Can You Copyright Tattoo Designs?
It is actually common for artists to copyright their tattoo designs. This protects the artist from having their work ripped off by another artist or even reproduced or sold in another art form. If the person receiving a tattoo wants to guarantee their tattoo remains unique, they can purchase the reproduction rights as well.
The designer of Mike Tyson’s face tattoo brought a lawsuit against Warner Bros. In Hangover 2, Ed Helms’ character gets a tattoo of the same famous design. Warner Bros. ended up settling out of court.
This looks promising for the tattoo shop suing the makers of 2K17. But there is a key difference. In Hangover 2, the tattoo is reproduced on another character, not on Mike Tyson. No one has to pay to licence copyright fees everytime Tyson’s face shows up on TV. The issue instead becomes reproduction rights.
Where reproduction rights come in for the 2K17 game is that the tattoo is being recreated when they game artists design individual players. So when LeBron is broadcast on national TV the artwork displayed is the artwork he paid to have inked on his body. But when he is reproduced in the video game, the art shown is a reproduction of the original design.
So can the tattoo studio win the LeBron James tattoo lawsuit?
The tattoo studio filing the lawsuit definitely does have a legal leg to stand. But it’s far from a sure thing. Intellectual property laws are nonspecific and decisions are on a case-by-case basis. As well, Take-Two is claiming fair use and have a reasonable claim to that as well.
Fair use laws
allow for copying copyrighted material without the permission of the copyright owner. Some of the more clear-cut cases of fair use are for use in parody. Think Weird Al.
In this case, Take-Two argues that their use constitutes fair use because they are simply showing the athletes as they appear in real life. As well the tattoos are not prominently displayed, nor central to the gameplay. It’s not a clear example of fair use law, but they are good points.
The artist who settled out of court for his tattoos reproduction in Hangover 2 didn’t pursue legal action for his tattoos representation in the cartoon Mike Tyson Mysteries. If he had, it would’ve been more comparable since the show has the tattoo reproduced on the cartoon likeness of Tyson.
The fact that he isn’t suing the show after having success with his lawsuit against Warner Bros. suggests that this may not be as strong of a case.
On the other hand, now that a judge has refused a motion to dismiss the case there is a real chance for Take-Two to lose the case. The most likely result, however, is that they settle out of court.
What’s the takeaway from all this?
Even the conclusion to the case still unknown, there are still takeaways from the case. Admittedly, on its surface, the whole ordeal looks like a cash grab. But it raises important questions for tattoo artists. In a world of growing mediums and exposure, how can artists protect their intellectual property? How far should copyright go?
Regardless of how this case shapes out, we know that the best tattoo artists
will continue to focus on creating original designs.
For now, we just want to pick up the game to see how Toronto's DeMar DeRozan’s tattoos turned out.