Developers that work on sports games do so with the intention of delivering an authentic experience. They license players, their signature equipment, and even the buildings they play in, but a new lawsuit alleges that Visual Concepts and Take-Two Interactive failed to properly license the tattoos on some of these players.
The plaintiff, Solid Oak Sketches, claims to own the copyrights to eight designs spread across multiple players including LeBron James, Kobe Bryant, Eric Bledsoe, and DeAndre Jordan. Solid Oak Sketches had previously offered to license the works in question to Take-Two and Visual Concepts for $1.14 million, but Take-Two and Visual Concepts proceeded without licensing.
Solid Oak Sketches argues that tattoos fit under the statutory definition of “pictorial, graphic, and sculptural works.” In the court filing, the plaintiff points to specific certificates of registration with the United States Register of Copyrights. When we reached out to Darren Heitner of Heitner Legal, the firm representing Solid Oak Sketches in this suit, he declined to provide further comment, but he did provide a bit more context. “We previously reached out in good faith to negotiate,” he told us. “They did not take licensing seriously.”
The lawsuit filed seeks a permanent injunction – meaning that Take-Two could lose the ability to sell NBA 2K16 going forward – plus damages reaching as high as $150,000 per violation with interest and attorney’s fees on top of any judgment. Solid Oak Sketches’ argument is that Take-Two credited much of NBA 2K16, which shipped 4 million units in its first week, to the realism and authenticity of the graphics. The filing also cites press coverage on the improved tattoos in this year’s entry.
In 2012, the tattoo artist of UFC fighter Carlos Condit sued THQ for a similar issue with UFC Undisputed 3. In that lawsuit, Condit’s artist, Chris Escobedo, who originally asked for $4.1 million, was awarded $22,500. In that suit, the argument was made that despite the art’s placement on a licensed athlete’s body, that art is still the work of the artist, meaning the artist retains rights over the work. A similar argument is being made in this new Take-Two/Visual Concepts suit, which means that Solid Oak Sketches has precedents on its side.
We reached out to Take-Two Interactive, which declined to comment on the suit, stating that the company does not comment on legal matters.
Developers obviously license player likenesses for games, but does that extend to art permanently on the skin of those players? The Madden series has already done away with this issue by removing authentic player tattoos altogether unless the player specifically gets a waiver from his artist. Barring any kind of court ruling – that is, if this even makes it to court before a settlement is made – I have a feeling Visual Concepts and Take-Two will consider going that same route to avoid issues like this in the future.