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?