Solid Oaks says the realistic recreation of players' tats isn't fair use.
Tattoo studio Solid Oak Sketches is still engaged in a legal battle with Take-Two Interactive, owners of the popular NBA 2K video game franchise, over the use of tattoos that are depicted on several basketball players who are featured in NBA 2K.
Last month, LeBron James testified: "My understanding is that the tattoos are a part of my body and my likeness, and I have the right to have my tattoos visible when people or companies depict what I look like … No tattooist has ever told me I needed their permission to be shown with my tattoos, even when it was clear I was a public basketball player."
Although NBA stars like LeBron may have granted to Take-Two his rights of publicity through the NBA or its players association, Solid Oak Sketches argues that it doesn't include the copyright to the artwork in his tattoos. The studio likens a tattoo artist to a painter who is commissioned to create a work of art - meaning the person paying for it has input into the process, but the artist has ultimate control of the finished product and ultimate ownership of it.
Solid Oaks originally sued Take-Two Interactive in 2016, alleging it owns the copyrights for those tattoos but they've since filed a new motion.
According to The Hollywood Reporter, Solid Oak's suit claims:
"Importantly, neither Mr. James nor any of the other relevant professional basketball players whose tattoos are at issue in the instant lawsuit, did or could have licensed the underlying copyrights to Defendants. Plaintiff has never attempted to argue that rights of publicity were not granted by Mr. James to Defendants through a third-party conduit (i.e. the NBA and/or NBPA), and Plaintiff has no interest in disputing same. However, Plaintiff disputes that any granting of consent to use Mr. James’ likeness is at issue in this dispute or that the issue of consent is even relevant to the copyright infringement claims made herein."
THR reports Solid Oaks is now asking the court to deny Take-Two's motion for summary judgment and to ignore the testimony of several of its experts in support of that motion.