NBA 2K is a video game series developed and released annually since 1999. Each game features animated, realistic versions of National Basketball Association (NBA) players. The 2014 and 2015 NBA 2K renditions include depictions of NBA players LeBron James, Kobe Bryant, Eric Bledsoe, DeAndre Jordan, and Kenyon Martin. Each of these five NBA players has one or more tattoos and the players’ NBA 2K depictions include their tattoos.

After obtaining rights from the tattoo artists who inked eight of the relevant tattoos, Solid Oak Sketches filed a copyright infringement action against 2K Games Inc. and Take-Two Interactive Software, the producers and distributors of the NBA 2K games. (In its amended complaint, Solid Oak dropped references to Bryant and Jordan and reduced the number of relevant tattoos to six.)

Initial Procedural Loss for Solid Oak

The court has already ruled that Solid Oak may not pursue statutory damages and attorneys’ fees in the lawsuit since the copyright registration applications for the eight tattoos were not timely filed. However, Solid Oak is continuing the lawsuit for actual damages.

Special Copyright Considerations for Tattoos

I have previously blogged about tattoos as protectable art. Already, the initial court filings of Solid Oak, 2K Games, and Take-Two Interactive raise many interesting questions about copyright protection for tattoos including the following:

When Is a Tattoo “Fixed”? Solid Oak filed the copyright registrations for the tattoos during summer 2015 – nine to seventeen years after the tattoos were applied to the NBA players. 2k Games and Take-Two allege that Solid Oak copied images of the NBA players from the internet for the deposit copy that must be submitted with the copyright application. If that is true, it suggests that the tattoo artists did not retain copies of their original tattoo designs (i.e., didn’t fix them anywhere other than on the players’ bodies).

As a result, the court might address – among other issues - whether a tattoo that exists only on an individual’s body qualifies as fixed in a tangible medium of expression as required for copyright protection. Some legal commentators argue it does not – while others insist it does.

What Is the Result of Collaboration between Tattoo Artist and Tattoo Recipient? Many tattoo recipients provide detailed instructions and even specific designs for creation of their tattoo. At what point does input from the tattoo recipient result in the tattoo recipient being a co-owner or even sole owner of the resulting tattoo? According to 2k Games and Take-Two’s description, each of the relevant tattoos was created with contributions and guidance from the NBA player. As an example, James provided a photo of his son for the child portrait tattoo inked on his arm.

What Is the Impact of Modifying the Tattoo? Body tattoos are designed to last a lifetime. But your desires for that tattoo might change as you live your life. What happens if your tattoo is later modified by a different tattoo artist? Who can then claim ownership of the tattoo? In the NBA 2K case, the arm tattoo of James’ son, originally applied in 2006, has been changed by different tattoo artists over the years to add more detail.

What Is the Appropriate License Fee for Incidental Use of a Tattoo? Here is how Solid Oak’s attorney calculated a proposed settlement fee according to correspondences attached to the complaint. To begin the calculation, Solid Oak used the $22,500 court award to tattoo artist Christopher Escobedo in a separate dispute involving a depiction of UFC champion Carlos Condit (wearing Escobedo’s lion tattoo on his rib cage) in the video game, UFC Undisputed.

  • Dividing the $22,500 award by the 4.1 million copies of the UFC Undisputed game sold yielded a per unit award to Escobedo of 0.55 cents per unit. (Incidentally, Escobedo appealed the bankruptcy damage award and settled the claim outside of court for an undisclosed – but presumably higher - amount.)
  • Multiplying 0.55 cents by the 8 tattoos used in the NBA 2K games yields a 4.4 cents license fee due for each applicable copy of the NBA 2K game sold
  • Multiplying 4.4 cents per unit fee by the approximately 13 million units sold of NBA 2K14 and NBA 2K15 yields $572,000.
  • Plus a front-cover premium. In its settlement correspondences, Solid Oak indicated that the NBA 2K14 cover features LeBron James with two of the relevant tattoos visible. Solid Oak asserted that the front cover tattoo depiction was worth a premium – calculated by tripling the 0.55 cents per tattoo per unit fee which yields a $1.65 premium per unit for each cover-featured tattoo.
  • Multiplying $1.65 by the 7.5 million units sold of NBA 2K14 yields a $123,750 premium for each of the two tattoos depicted on the cover.
  • Totaling $819,500 for the prior unauthorized reproductions, displays, and public disseminations of the eight tattoos
  • Plus an optional $1,144,000 charge for Solid Oak’s offer of an ongoing perpetual license to continue using the eight tattoos for future NBA 2K editions.
Solid Oak’s Total Proposed Price Tag for Past and Ongoing Video Game Depictions of the 8 Tattoos: $1,963,500

What boggles my mind is the tattoo premium requested for LeBron James’ appearance on the cover. The request strikes me as a misguided assessment that treats James’ appearance on the cover as incidental to the tattoos’ appearance – rather than vice versa. In my mind, it’s James who attracts eyes to the cover; not his tattoos.

Solid Oak v. 2K Games might be the first tattoo copyright infringement lawsuit to be decided by a court on its merits – rather than by the parties’ out-of-court settlement. If so, it will be an interesting case to watch. (The case is Solid Oak Sketches v. 2K Games and Take-Two Interactive Software, No. 16CV724-LTS (S.D.N.Y., Filed Feb. 1, 2016)