Professor Mike McCann discusses how a judge ruled in favor of NBA 2K’s creators in a case brought by tattoo artists on use of player tattoos in their video game.
Read Professor McCann’s Sports Illustrated article on the subject: https://www.si.com/nba/2020/04/06/nba-2k-ruling-tattoo-artists
Follow Professor McCann on Twitter: https://twitter.com/mccannsportslaw
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UNH Franklin Pierce School of Law is now accepting applications for JD, Graduate Programs, and Online Professional Certificates at https://law.unh.edu
Legal topics include intellectual property, copyright, fair use, sports law, entertainment law
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A. J. Kierstead (Host):
Professor Mike McCann discusses how a judge ruled in favor of NBA 2K creators in a case brought by tattoo artists. This is the Legal Impact presented by the University of New Hampshire Franklin Pierce School of Law. Now accepting applications for JD graduate programs and online professional certificates. Learn more and apply at law.unh.edu. Opinions discussed are solely the opinion of the faculty or host and do not constitute legal advice or necessarily represent the official views of the University of New Hampshire. So Mike, what case is this court decisions centered around?
Michael McCann:
A.J., it's centered around copyright law and specifically in the context of video games. And here the case is about the video games NBA 2K, which as you know was very popular. Last year it was the second highest selling game and the highest selling game ahead of Madden. And the controversy is about the avatars and the games were based on real players, the tattoos that they have. So the game designers, Take-Two interactive and 2K Sports, try to make the game as realistic as possible because that helps sales. It makes it more immersive to players. And in the course of doing so, they replicated the tattoos on players' arms so that they look just like the real ones. The legal issue is whether they have a right to do that, because the tattoo artists through a company which they're in contract with, Solid Oak, has said," You don't have a right to do that. You never paid us for the right to use the tattoos. There's a copyrighted design in those tattoos that you're infringing on." So the case centers on that very issue.
A. J. Kierstead (Host):
Now this pops up to me as a photographer and videographer, can you sue someone who took a photo of someone who happened to have that tattoo and then sell that picture?
Michael McCann:
Conceivably, yeah. Now this decision is going to say," Good luck with that because the decision ruled in favor of the video game publisher." And the reasoning for that was on several grounds. One is that the tattoos were so small that they're actually 1/10th or less than that of the real actual size in real life. And then in addition, the video game player barely notices the tattoos. It's a tiny, in most cases is blurred. And if you look at the game data, it's far less than a percent of the game data. And then there was also the argument that there is a transformative element. That the idea with the tattoo artists, when an NBA player hires a tattoo artist, he has this idea of getting a tattoo that's based on some individual, really expression, that he wants a tattoo of a child or whatever it may be, that it's about identity.
Michael McCann:
With a video game company, they argued successfully that their reasoning is totally different. They just want a copy. They literally are getting it to make it as real as possible. So there's a transformative element in the sense that their purpose is totally different than what the NBA player seeks. And there's also the argument of a fair use and implied license that they had a right to do it. They pay the NBA, the players association, a lot of money to get the identity rights to players in terms of name, image and likeness, that it should cover, at least implicitly, the tattoos. All of those arguments worked. Now this could be appealed and there could be competing arguments about how far does it go? If you pay for rights, does it include everything? It looks like the answer, at least according to one federal court, is yes, but we'll see if others agree.
A. J. Kierstead (Host):
Yeah, because there'd be huge industry wide implications for sports journalism, I'd imagine, taking pictures of people of players on the court and things like that. This wouldn't just be limited to video games.
Michael McCann:
Conceivably, yeah. Now the media companies are going to say," Well, there's a first amendment right to report on what happens in a game. If you take a photo of a game, it's within the confines of news reporting." Video games is in a different category, there's some element of informing the video game player about players, right? You may be a Celtics fan and not know that Marcus Smart has certain tattoos and you're learning about them through the game. There could be some element of relaying information that might be relevant. But yeah, there's no question that this case has an impact. Just how we evaluate information and who controls it and who can copyright information or does it change once it goes into certain context. It's pretty interesting stuff.
A. J. Kierstead (Host):
Now, would there be a first amendment case be made for the video game maker too, with regards that they want this to be as realistic and they're trying to make something that really puts the video game player on the court in their minds as much as possible.
Michael McCann:
I think there is that possible argument, especially because games now can convey so much actual data. Right? They're telling the gamer about a particular player, about the player's background and statistical information. Now that games are updated continuously, there can be scrolling of scores at the bottom of games that are real scores that are being shown on the video game. That it's kind of morphing into... You could argue more information, more reporting, more of a first amendment issue. It's unsettled to [arid 00:05:18]
A. J. Kierstead (Host):
And this is only going to get more in depth as virtual reality gets more developed and you get more into... They're talking eight K video to be coming out. Those little details are going to be more apparent.
Michael McCann:
Yeah, absolutely. And this is why this decision is going to be good for video game companies, not so good for those who are involved in associated industries where they're changing players identity. In the context to the tattoo, it changes the pigment of the skin. Is it now part of the player's body that it's no longer the design? Yeah. As the games become more realistic, these issues could get really unique. And virtual reality, right, that's another game changer.
A. J. Kierstead (Host):
Is there any historical reference that where something like this might've been a problem in the past?
Michael McCann:
We have seen elements of this before. There was a video game involving the UFC, where a fighter had his tattoo in the game and the artist sued. The case was resolved before a decision because the company went bankrupt. But the artist was able to get some money from the bankruptcy which suggested that perhaps there were some right in the tattoo being in the video game. In addition, there was a former NBA player named where Richie Wallace, who paid for a tattoo and then Richie Wallace was in a Nike commercial and they zoomed into the tattoo. The artists said," You owe me money." And it was settled out of court, when it raises the issue of what are the rights that go with the tattoo?
A. J. Kierstead (Host):
Would you say, just to have a decision, is it best for a decision to be made at this point by the court on how to handle these things?
Michael McCann:
It's always some risk, right? Because the technology, as you alluded to earlier, is changing. That there's a chance that a decision for a game on the PlayStation four and Xbox one is not going to be good long. When new video games systems come out, when the technology changes so that it's more interactive. So there's always some risks. On the other hand, this was the live case and the judge had to make a decision and the case involved 2K games from the mid 2010s and the judge had to really rule on them.
A. J. Kierstead (Host):
It's very specific. It wasn't some general calling out of 2K
Michael McCann:
That's right, and it involved three NBA players rather than all NBA players. So some of the reasoning that it was a small portion of the data. If it were, say, a class action of NBA players, perhaps there would be a stronger case. Now there are other reasons that the judge gave, which would suggest probably not. But the idea of the tattoos that were in the game being a small portion of the data, that becomes a less powerful argument, the more players that are suing. In this case, it was the only three players.
A. J. Kierstead (Host):
Thanks for listening to the Legal Impact presented by UNH Franklin Peirce. To help spread word about the show, please be sure to subscribe and comment on your favorite podcast platform, including Apple podcast, Google play, and Spotify. Also, visit the show page at law.unh.edu/podcast
