Over the previous decade, sports video games have become more and more sophisticated as makers work to get every excruciating detail about every player just right. One tattoo studio, however, alleges that Take-Two Interactive went too far in the latest edition of the popular basketball series NBA2K. Solid Oak Sketches sued the NBA 2K16 creator in federal court recently for copyright infringement, alleging that NBA 2K16 used eight pieces of its artwork on popular athletes such as LeBron James and Kobe Bryant without its permission. James’s tattoo featured in the game, for instance, included doves, a child’s portrait, and script scrolls on his forearms, while Bryant’s included butterflies on his arm. Solid Oak Sketches had obtained copyrights to most of the designs last year, and it offered NBA 2K16 the rights to the tattoos for $1.1 million.

Despite the unconventional-sounding nature of the lawsuit, infringement actions for tattoo use in video games are not unprecedented. In 2013, a designer sued EA Sports for using one of his tattoos, present on former NFL running back Ricky Williams’s arm. And in 2012, an artist actually won $20,000 after THQ, another video game studio, used a design in a UFC game.

Game studios can deal with this issue in several ways. First, they can avoid using the tattoos altogether, however much the absence detracts from the realism of the game. Second, they can pay the licensing fee, though given the $1.1 million proposed price tag in this case, that option does not appear feasible. Finally, they can use the tattoos first and ask for forgiveness later. That may be the go-to option as long as the disparity between damages ($20,000, for instance) and licensing fees is so large and as long as an injunction forcing the tattoos’ removal does not follow.

Sources: http://kotaku.com/nba-2k16-studio-sued-over-some-video-game-tattoos-1756503371 http://espn.go.com/nba/story/_/id/14693836/makers-nba2k-sued-graphically-representing-tattoos-players-permission

For more information on this topic, please visit our Copyright Infringement Defense service page, which is part of our Software & Copyrights practice.

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