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A U.S. judge has ruled that Take Two Interactive is not liable for copyright infringement because the NBA 2K series of games reproduces tattoos licensed by individual artists. Although the court did say that the artist representatives could pursue actual damages, they said that statutory compensation was out of the question.
The original lawsuit was filed by Solid Soak Sketches LLC (which represents the artists behind the designs) and claimed that because Take Two and developer Visual Concepts used tattoo designs in the game without permission from the copyright holder, they were in breach. It hoped to recover as much as $150,000 per infringement (as per Reuters).
There were eight tattoos in question, including the words “hold my own,” on Lebron James' left bicep and Koby Bryant's bicep tattoo of some butterflies. These designs were used in the latest game, as well as in previous iterations. While that might have helped increase the potential ceiling for a settlement, that actually proved to be the downfall of the statutory damage demands. [yframe url='http://www.youtube.com/watch?v=rc3XFlL-Dbk']
“When the same defendant infringes on the same protected work in the same manner as it did prior to the work's registration, the postregistration infringement constitutes the continuation of a series of ongoing infringements,” the judge said. Because the first alleged infringement occurred in NBA 2K14, Solid Oak's lack of previous litigation meant it was unable to be awarded statutory damages in this case.
The judge did however say that actual damages may be possible, though the realistic payout from that would be far lower than the reward from statutory damages.
However Solid Oaks does plan to pursue the actual damages, with its representative saying that they looked forward to explaining why their client was worthy of such compensation.
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KitGuru Says: I'm not sure how you can copyright a tattoo. Surely if a tattoo is on my body, that particular incarnation of that design is mine?
Would that mean that any commercial or movie or whatever in which these players appear also infringes on the copyrights of the artists? Or only when the makers actually have to recreate the image like in digital reconstruction? And could one not argue that the tattoo is part of the person being represented and so the tattoo is not being recreated only the person on who’s body the tattoo has been put?
In a similar manner, if I upload a video from a bar where music is playing in the background, should I pay for using that song?
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I don’t have an answer about the tatoo thing. But indeed you have to pay for copyright for a song, even if its in background and you do not have anything to do about it. (Think about a parent filming his child dancing… you cannot post it in YouTube without infringing some IP)
Crazy laws be crazy.
Just put a lot of moaning noises on the sound track and call it original.
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I can see the artwork, in this case the tattoo, being a copyrighted material on its own. But when you attach that to its final destination, LeBron James in this case, I fail to see how the artwork continues to carry said copyright. Did LeBron sign a copyright contract? If he fails to pay the copyright holder does he have to have the tattoo removed? If their complaint was that they moved LeBron’s tattoos to a different player or allowed them to be reused on a “create-a-player”, then they might have something. Take Two has permission to reproduce LeBron’s likeliness, that should be sufficient.