What was the case?
The suit, brought up by Solid Oak Sketches back in 2016, claimed that copyright was infringed upon when work they had done on players appeared in various NBA 2K games. The company stated that the distinct tattoos done, which they purchased from the original artists a year prior to the suit being filed, was done without receiving permission to use the artwork.
The players named in the original filing included LeBron James, Kenyon Martin, Kobe Bryant, Eric Bledsoe, and DeAndre Jordan.
Solid Oak Sketches was looking for $800,000 in damages and another $1.1-million to continue using the tattoos in the NBA 2K games.
Take-Two’s argument the entire time was that recreating the tattoos on players in-game constituted fair use. The company also said that allowing tattoos to be copyrightable would “open a Pandora’s box beyond usage in video games.”
Judge Laura Swain apparently agreed enough with Take-Two to rule in the company’s favor. In her ruling, Swain said, via the NY Post, that “only 0.000286% to 0.000431% of the NBA 2K game data is devoted to the Tattoos”. In addition, she noted that the tattoo artists always knew that work done to the NBA stars would “appear in public, on television, in commercials, or in other forms of media, like video games”.
Regarding the argument of fair use, the ruling stated that 2K Sports recreated the tattoos within the games in order to “most accurately depict the Players”.
What does this mean for the future?
To put it in a few words: it’s hard to say.
This is just one case of many that have come and gone over the years. While some companies like EA and THQ have settled these suits in the past, others may now start to fight after seeing Take-Two Interactive and NBA 2K come out on top in their defense.
Madden NFL saw tattoos return to the game back in 2014 with Colin Kaepernick after not appearing in the series since 2005 due to copyright concerns. Since then, only a few players have had accurate tattoos appear such as wide receivers Mike Evans and Odell Beckham Jr.
With this new ruling, it’ll be interesting to see whether any more tattoo artists attempt to go after larger studios for copyright infringement. Each case is obviously different and open to interpretation by the presiding judge, but many game developers now have a case to directly point to in order to prove their main argument of fair use.
For the artists, building up a case to prove infringement may only get tougher from here on out.