The NBA 2k video game franchise has been heralded for its attention to detail and realism. They’ve recently found out that no good deed goes unpunished.
As Take Two Studios takes part in the successful launch of the NBA 2k League, a new professional esports league sponsored by the NBA built around its NBA 2k video game, not everything is a slam dunk for Take Two. Like a LeBron James block from behind, a lawsuit threatens to steal some of Take Two’s momentum.
In 2016, Solid Oak Sketches — which has done tattoo work on NBA players Eric Bledsoe, LeBron James and Kenyon Martin — filed suit against Take Two for what it alleged was a violation of copyright law. The designs that comprised the players’ tattoos were private intellectual property, the suit argues, and Take Two violated Solid Oak’s rights when it replicated those designs on the virtual players’ bodies in the video games.
On Friday, March 30, a federal judge denied Take Two’s motion to dismiss the case on its merits, or rather lack thereof. The motion argued that the tattoos weren’t prominently featured in the game and even if they were, depicting the players with the tattoos was permissible under the doctrine of fair use.
For readers unfamiliar with that term, the fair use doctrine in copyright law states that the First Amendment protects people who create original works using something someone else created or someone’s image, likeness or name when that original work equates to a work of art or commentary on the subject. It’s the reason Adult Swim’s “Robot Chicken” is immune to lawsuits from the celebrities it depicts.
The judge didn’t disagree with Take Two’s claims in refusing to dismiss the case at this point, but rather stated she needed further information to determine whether or not fair use applies in these circumstances.
More than likely, this suit won’t go to trial. It will be settled if not dismissed on its merits at a future date. For the time being, however, all the work that Take Two has put into making the NBA 2k franchise as real as possible seems to have backfired.