As tattoo fans we were thrilled when we heard that NBA 2K16 video game would include the real life ink of all of our favorite players. It turns out that some people weren’t as enthused as a group called Solid Oak Sketches is now suing the makers of the game over some of the tattoos depicted in the game, including ink belonging to LeBron James and Kobe Bryant, according to ESPN.
The suit falls into a sort of legal grey area regarding tattoos that seems to be coming up with increasing frequency. The most notable of these cases occurred when the tattoo artist responsible for Mike Tyson’s facial ink sued the makers of The Hangover 2 for replicating the tattoo on the face of Ed Helms’ character Stu. The question is really over who owns the tattoos—the person whose skin is marked or the artist that put it there.
Attorney Marisa Kakoulas addressed this issue in a previous issue of Inked in great detail, but the gist of the idea is that unless a specific arrangement has been made stating otherwise, the tattoo artist owns the copyright on your tattoo. Therefore if that tattoo is used by a third party, in this case Take-Two Interactive and Visual Concepts, they would be violating the artist’s copyright. The reason that this is still a legal grey area is that every known case has been settled before a judgement was ruled, thus there is no precedent to go by.
One aspect that may come up within this trial is how the tattoos were designed. As Kakoulas explained to us, there is a huge legal difference between an original design by an artist or a collaboration with a client. “If they did collaborate, both could be joint copyright owners, meaning they each have a right to do whatever they want with the work independently,” Kakoulas says. “In that case, the artist or the client could decide to license the use of the design for free, or they could each try to make some money off of it. But if either of them did make money from licensing the design, the law says that profits would need to be split.”
In addition to trying to figure out the complication about how the designs in question were created, this adds in the element of whether or not players freely gave permission to have their likeness used or if it is tied into an agreement for which they were compensated.
One thing that appears to be clear about this case is that nobody went out of their way to receive the permission of the tattoo artists. In the latest version of EA Games’ Madden San Francisco 49er Colin Kaepernick has all of his tattoos replicated in detail. In order to do this Kaepernick received permission from his tattoo artists, a step that it appears was not taken during the creation of NBA2K16.
It will be interesting to see where this case goes and if it actually goes to trial, a ruling could set a precedent that will effect the entire tattoo industry. Keep coming back to Inked for the latest on this case.