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2K Sports scores partial victory in bizarre tattoo copyright lawsuit

Who owns the ink in another person's skin?

Take-Two Interactive, the parent company of 2K Sports, has won a partial but significant victory in a lawsuit over NBA players' copyrighted tattoos that appeared in the company's basketball series without permission.

A federal judge in Manhattan threw out claims for statutory damages by tattoo artist shop Solid Oak Sketches in its lawsuit against Take-Two, filed early last year. Solid Oak alleged that its designs — which are inked into the skin of NBA stars Kobe Bryant, LeBron James and others — were rendered into the game without authorization, violating its copyrights.

The ruling means that Solid Oak's claim of $150,000 per infringement, which could theoretically lead to billions in total damages because of the number of copies of NBA 2K sold each year, is nullified. That is because these designs were registered with the U.S. Copyright Office in 2015, after the alleged infringements occurred.

However, the judge ruled that Solid Oak may still pursue actual damages related to lost income for the tattoos' appearances in the NBA 2K series.

Other sports video game publishers, such as EA Sports and the defunct THQ, have found themselves in legal scrapes over athlete tattoos. Most notably, the makers of the 2011 film The Hangover 2 were sued by the person who designed Mike Tyson's distinctive face tattoo after a replica of it was put on Ed Helms' face for that movie as part of a running gag with the boxer.

All of those claims were settled, which still leaves open the question of who owns or controls a tattoo's design once it goes into a person's skin. The case against Take-Two still has the potential to set some kind of precedent.

Sports video game publishers pay for group or individual licenses entitling them to use athletes' likenesses — assumed to be their entire physical appearance — in their works. The tattoo question is a new thread of this licensing spiderweb.

Since resolving a case over the tattoos for NFL Street cover star Ricky Williams in 2004, EA Sports has required any athlete appearing in its game to seek and receive tattoo artists' permission if their body ink is to appear in a game such as Madden NFL or UFC.

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