With accretion frequency, video amateur are depicting tattoos that actual carefully resemble those active on the bodies of arresting able athletes. While abounding would accept these tattoos accord alone to the wearer, the acknowledged absoluteness is that their delineation in video amateur ability be actionable because boom artists can absorb the designs that they ink. Exactly how far absorb aegis for these tattoos extends has yet to be absitively by a U.S. court, but a contempo accusation adjoin the developers of the NBA 2K video games, Take-Two Interactive, ability accommodate advice to boom artists, video bold developers, and athletes.
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Solid Oak Sketches is suing Take-Two Interactive, alleging absorb contravention for crooked use of Solid Oak’s tattoos as they arise on a host of NBA all-stars, including LeBron James, Stephen Curry, and DeAndre Jordan. (Solid Oak Sketches, LLC v. Visual Concepts, LLC et al, Case No. 1:16-cv-00724). The aboriginal boom artists accept active absorb licensing agreements with Solid Oak, which admission bookish acreage rights beneath absorb law to Solid Oak as if they were the aboriginal artists. The altercation centers on whether Solid Oak’s tattoos are copyrightable and if so, whether Take-Two’s reproductions of the tattoos breach absorb law.
Copyright aegis is accessible for aboriginal works of antecedent anchored in any actual average of expression. Aboriginal boom designs like Solid Oak’s acutely accommodated the boldness requirement, but its acknowledged whether bark on a animal anatomy is an alive average which qualifies as a canvas for a copyrighted work. Whether tattoos are copyrightable is abnormally important for video bold developers as alone a absorb holder possesses the appropriate to affectation his marks.
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Absent an acceding amid an amateur and boom artisan allotment rights to the design, the artisan retains the rights to the tattoo. Individuals aloft whom tattoos are active are not the absorb holders, but rather the “tangible medium” on which the boom artist’s account are fixed. In this case, Solid Oak has the rights to the designs because it entered into licensing agreements with the boom artists, not the athletes. Assuming Solid Oak’s tattoos are absolutely copyrightable, the accountability accouterment to Take-Two to appearance that their reproductions did not breach these copyrights.
Solid Oak alleges they offered to authorization the tattoos for use in the amateur but that Take-Two ultimately bankrupt off negotiations. Admitting this credible apathy for Solid Oak’s bookish acreage rights, Take-Two argues that their depictions of the tattoos constituted fair use or de minimis use, accepted defenses to absorb infringement. Take-Two alleges that back they reproduced the tattoos for the purpose of actuality and they rarely arise in the video bold afterwards pausing and zooming in (since they’re alone displayed on a scattering of the 400 NBA players in the game), they did not borrow Solid Oak’s copyrights.
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A contempo case on this affair complex THQ’s UFC Undisputed 3 which awash 4.1 actor units and acutely displayed an apart advised bobcat boom over the rib cage of UFC best Carlos Condit. The boom artist, Christopher Escobedo, was awarded $22,500 in defalcation cloister afterwards THQ filed for bankruptcy, but appealed the accolade and ultimately accomplished an out of cloister adjustment afore the cloister bidding an assessment on his absorb claims. It’s accepted that the altercation amid Take-Two and Solid Oak will ability the aforementioned outcome, admitting affirmation of Take-Two’s credible adamant apathy for and abuse of Solid Oak’s boom bookish acreage ownership. Assuming the parties ability a adjustment afore the cloister can authority on Solid Oak’s absorb claims, video bold developers will be larboard afterwards a bright solution.
Some video bold developers accept proposed that they should buy boom licenses from the artists. While analytic absorb issues, this access ability prove financially crushing as developers already arrangement with sports leagues and players’ unions to use players’ likenesses. If video bold developers are accepted to additionally pay for accessory boom licenses, will companies application amateur likenesses for endorsements or blur and television appearances be accepted to defended these licenses as well? Would added different aspects of an athlete’s affinity and achievement crave a abstracted license?
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A additional abeyant band-aid is for video bold developers to crave athletes or players unions to defended boom licenses afore the tattoos are reproduced in-game. Electronic Arts has afresh taken this access with its Madden franchise. Sports bold developers are anxious about this access however, back it ability backbite from the actuality or accuracy of the games. Given that every amateur would not be able to defended a authorization from their alone boom artists, abounding active players would not accept their tattoos represented in-game.
At a minimum, video bold developers should analysis with athletes about any boom licensing agreements that ability abide afore including tattoos in-game (this would be far beneath crushing in sports, such as basketball, with beneath players). Further, sports leagues and their affiliated players associations may acquisition it advisable to admonish players to defended releases from their boom artists to abstain acknowledged liability, as the NFLPA has done with its players. Regardless, until a cloister expresses an assessment on the amends of breeding copyrighted tattoos in video games, apprehend video bold developers to abide to use trademarked tattoos in amateur to best realistically characterize sports abstracts and added celebrities.
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Aaron Swerdlow is an advocate at Gerard Fox Law, area he represents sports, corporate, and arising technology entities.
Uriah Tagle is a third-year law apprentice at UCLA School of Law area he serves as Co-President of the Sports Law Federation.
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