The lawsuit over the use of photo-realistic tattoos in NBA 2K games is moving forward, with fascinating legal implications for copyright law at stake.
A tattoo shop, Solid Oak Sketches, claims that NBA 2K publisher Take Two violated copyright whens they included tattoos the company designed on the digital versions of NBA stars like Kobe Bryant and LeBron James.
Take Two had requested the case be dismissed, but according to The Hollywood Reporter the judge residing over the case allowed it to continue on Friday, declaring that the fair use legal ruling the company tried to argue covered their recreations did not necessarily apply to the tattoo designs.
The lawsuit argues that the tattoo shop owns the copyright to the images inked on the NBA players and that the video game should have to obtain licenses to recreate those copyrighted images in a video game.
When the lawsuit was first brought in 2016, no judge had ever firmly declared that tattoo designs are copyrightable. One tattoo artist once sued Warner Bros. over Hangover 2 for a reproduction of Mike Tyson’s face tattoo. That case settled. Another dispute came from a tattoo artist who inked a UFC fighter and later asked a bankruptcy court to determine the value of his tattoo claim against videogame publisher THQ.
Copyright law protects original works of expression fixed in a tangible medium, but the question on a motion to dismiss filed by Take-Two was whether the use of tattoos was too fleeting to be considered an infringement.
The more detailed explanation of the ruling and what happens next is fascinating, though it is a bit dense. The fact is that video games, still being a relatively new medium, don’t have a lot of a lot of legal precedence around a lot of the things that are included in games. And if the ruling goes against Take Two, the company would actually be at fault for making a sports video game a bit too realistic.