A federal judge has allowed Take-Two Interactive, the company behind the ‘NBA 2K’ video games, to replicate the tattoos of LeBron James, as well as several other players. Manhattan federal judge Laura Swain dismissed the lawsuit against the company, which was filled in 2016, calling the use of tattoos too trivial to earn consideration.
The lawsuit was filed by Solid Oak Sketches four years ago, as they claimed the copyright was infringed given that several NBA players were shown with their tattoos on the video game. Tattoos whose license is held by the company. The New York federal court filing was mostly focused on three LeBron James’ tattoos named “Child Portrait,” “330 and Flames” and “Script with a Scroll, Clouds and Doves.”
Relying on experts, the judge said that “only 0.000286% to 0.000431% of the NBA 2K game data is devoted to the Tattoos”, which weren’t that visible during gameplay.
“The tattoos only appear on the players upon whom they are inked, which is just three out of over 400 available players,” Judge Swain wrote. “The undisputed factual record shows that average game play is unlikely to include the players with the Tattoos and that, even when such players are included, the display of the tattoos is small and indistinct, appearing as rapidly moving visual features of rapidly moving figures in groups of player figures. Furthermore, the tattoos are not featured on any of the game’s marketing materials.”
Swain agreed that once the players have the art on their bodies, it becomes part of their likeness, instead of a product or a draw from the tattoo company. The ruling added that players were free to use that likeness in any way they wanted, noting that their tats would “appear in public, on television, in commercials, or in other forms of media, like video games.”
This quite a curious decision, knowing that once the pieces are on their bodies, as the judge said, they become part of the players. It would be interesting to see if this happened before with another video game, but for now, NBA 2K can’t be sued for replicating Bron and other stars' tattoos.