Tattoo company Solid Oak Sketches takes NBA 2K to court over the use of player’s realistic ink. Seems like not everyone is happy about the accurate depiction of players and their bodies.
According to a new filing from the company, NBA players like LeBron James and Eric Bledsoe can give the NBA permission to use their likeness but can’t grant the game use of their tattoos. Solid Oak Sketches claims they own the rights to use in a legal battle with the popular basketball video game.
In 2016, Solid Oak sketches sued Take-Two Interactive “alleging it owns the copyrights for tattoos that are depicted on several prominent pro basketball players who are featured in NBA 2k16, per the Hollywood Reporter.
Solid Oak compared a tattoo artist to a painter, who is commissioned for their work. Ultimately the artist is the one who has control of the finished product and ownership.
So, although James can grant Take-Two the rights to use his image through the NBA, Solid Oak argues that the rights do not include the copyright to the inked artwork.
“Importantly, neither Mr. James nor any of the other relevant professional basketball players whose tattoos are at issue in the instant lawsuit did or could have licensed the underlying copyrights to Defendants. Plaintiff has never attempted to argue that rights of publicity were not granted by Mr. James to Defendants through a third-party conduit (i.e. the NBA and/or NBPA), and Plaintiff has no interest in disputing same. However, Plaintiff disputes that any granting of consent to use Mr. James likeness is at issue in this dispute or that the issue of consent is even relevant to the copyright infringement claims made herein.”
U.S. District Court Judge Laura Taylor Swain in March declined to dismiss the case on fair use grounds. Solid Oak is now trying to convince the Judge that it wouldn’t be good to grant a summary judgment on these grounds. They also want Judge Swain to ignore evidence sent in by Take-Two’s experts that argue consumers don’t buy 2K because of the tattoos and that they are rarely noticed in the games.