- Tattoo `copyrightability' hasn't been decided by a court
- Artists say their original works are sold to millions for free
LeBron James and Kobe Bryant are at the center of an obscure legal battle over a simple question: can tattoos be copyrighted?
Video game maker Take Two Interactive Software Inc. was sued Monday in Manhattan federal court over claims its NBA games violate copyrights by depicting the actual tattoos of James, Bryant and other stars including Kenyon Martin, DeAndre Jordan and Eric Bledsoe.
The National Basketball Association players aren’t involved in the lawsuit, which accuses New York-based Take Two of infringing the copyrights starting in at least 2014. The suit was filed by Solid Oak Sketches LLC, which acquired licenses to the tattoos from the artists last year.
"Some of these tattoos, in particular the ones on LeBron James and Kobe Bryant, have been prominently featured on the cover photos and advertising for those games," according to the complaint.
The tattoos that are visible in the NBA 2K14, NBA 2K15 and NBA 2K16 video games include “Crown with Butterflies" on Bryant’s right bicep, and a “330" area code and a child portrait on James’s arms, according to the complaint.
To back up its claim that tattoo copyrights are valid, Solid Oak cited previous comments by federal judges in similar cases, who appeared to back the idea. But, according to the complaint, “the issue of tattoo copyrightability has yet to be decided upon in court due to numerous settlements preventing a final judicial opinion.”
Alan Lewis, a Take-Two spokesman, declined to comment on the lawsuit.
Michael Kahn, the lawyer who represented the group of artists before the lawsuit was filed and isn’t involved in the litigation, attempted to cut a deal with Take Two in July 2015. Kahn had previously reached a settlement over the unauthorized use of Mike Tyson’s face tattoo in the movie Hangover II.
Kahn offered to drop the threat of legal action against Take Two in exchange for $819,500, covering the use of eight tattoos in the 2014 and 2015 versions of the game, according to a copy of the letter filed with the complaint. The law firm also offered a perpetual license covering 2016 and beyond for $1.44 million.
Kahn’s law firm, Capes Sokol Goodman & Sarachan PC, said it calculated the offer based on figures from an unrelated case in which a tattoo artist was awarded $22,500 for the unauthorized use of one of his works in a video game by THQ Inc. In that case, a lion tattoo over the rib cage of Ultimate Fighting Championship winner Carlos Condit was used in THQ’s UFC Undisputed, which sold 4.1 million copies, the law firm said.
Darren Oved, a lawyer at Oved & Oved LLP in New York who isn’t involved in the case, said the tattoos “will be accorded legal recognition just as any other work of art would,” as long as they are “sufficiently original.”
“The legal scrutiny is the same regardless of the medium,” Oved said, though he predicted the case will settle without a ruling, leaving the question unanswered.
The case is Solid Oak Sketches LLC v. Visual Concepts LLC, 1:16-cv-00724, U.S. District Court, Southern District of New York (Manhattan).