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The guys take the court to discuss the recent lawsuit against a video game company claiming copyright infringement over tattoos on NBA players' bodies.

Full Podcast Transcript

NASIR: Welcome to our podcast where we cover business in the news and add our legal twist.
My name is Nasir Pasha.

MATT: And I’m Matt Staub.

NASIR: And I have zero tattoos. How many tattoos do you have?

MATT: 32.

NASIR: 32. Actually, you know, I just read, by the way – I don’t know what made me think of this but – someone ranked the best football cities and I think San Diego is ranked, like, 34 or 32 or something like that. I don’t know how it goes, but there’s only like, 30-something teams in the country, right?

MATT: Yeah. Well, there’s 32 teams so I hope they weren’t 34th.

NASIR: Yeah, I’m pretty sure it was 32.

MATT: Well, so there’s a couple of things – well, it wouldn’t matter because they’re either going to count Saint Louis or they’re going to count Los Angeles. But New York has two teams.

NASIR: Does that count as two cities? No, they did best or worse cities.

MATT: They played different spots.

NASIR: Yeah, I see what you’re saying. Well, let’s not analyze it too much. The point is that you have the same number of tattoos as the rank of San Diego in their fan base.

MATT: Well, you figured it out. I have all 32 NFL logos tattooed.

NASIR: Okay, perfect.
Well, actually, I mean, that may be a copyright violation. Did you think about that before you put it on?

MATT: Well, I’m glad you mentioned that because it’s something I did want to bring up. It’s kind of a second layer. If this episode was an onion, this would be the second layer of what I was going to discuss here.

NASIR: What if it was an orange? Same thing – second layer?

MATT: Maybe. It could just be the peel or the rind – whatever that is.

NASIR: Okay.

MATT: Yeah, but the actual juice of this episode is the deal with the tattoos. It’s something I never thought about before. You know, when I go out and get my 32 tattoos, you know, obviously, it’s on my body, but who owns the tattoo of the artwork that’s done on the individual? I never really thought about it at all until I saw this lawsuit this past week with the NBA. Well, I don’t think it’s even with the NBA. I don’t think there’s any players involved either. I think the actual lawsuit is…

NASIR: With the videogame maker, right?

MATT: Yeah, the creators of NBA 2K are getting sued by this company that did the tattoos.

NASIR: They bought the license or the copyright ownership from all these tattoo artists, actually.

MATT: Okay. Is that who it is?

NASIR: Yeah.

MATT: Are they the company that employed or the house artist that did it?

NASIR: No, I think what they did was they wanted to license out these tattoo images – who knows why? Maybe other people wanted to get these same images as a fan. And so, I think it was Solid Oak Sketches. They purchased. They went to these different tattoo artists and actually bought the rights to that particular art piece – that copyright image.

MATT: I saw that there were these licensing agreements from the artists and this company that ultimately sued but the point is this company sued NBA 2K – whoever has the ownership in that – for copyright infringement because what this game is doing is it has all these NBA players and, you know, it’s 2016 so it gets better. The graphics get better every year.

NASIR: By the way, that’s debatable. If anyone plays sports games, it’s like, “Yeah, you can see one more freckle than you did before.” Well, this is my area, right? At least we’re getting into videogames and you can talk the sports stuff. But, from the videogame perspective, it’s kind of frustrating because, you know, especially with Madden, it’s like every year they come up with something new and try to make the graphics a little bit better but, really, you know, we’re still pretty far from where we need to be, I think. I mean, really, we want just realistic, you know, we want to play ourselves. Literally, in order to play a basketball videogame, the best thing I recommend is to just go outside and play basketball.

MATT: Yeah, you can see the real tattoos in real-life.

NASIR: Yeah, exactly. Anyway, go on.

MATT: So, regardless of if it’s better or not, they have all these NBA players and you can see the tattoos on the players – and this is Lebron James is on there, Kobe Bryant, other players as well – and what this company is claiming – and they’ve actually filed for these copyrights and have them – “We own these tattoos or this artwork and you didn’t get our consent on this. There’s no licensing agreement, what-have-you. And so, now, by having this game, you’re infringing upon our copyrights and it’s not only the game but I think the real value is the ones that are on the cover of the game itself because that’s going to be the most visible thing because anyone can see that. You don’t have to play the game to see that.

NASIR: And so, at first, people are like, “Okay, another frivolous lawsuit,” especially when you find out this company bought these tattoo rights or copyrights and now are trying to enforce it against the game maker. It’s like, “Okay. Is this really fair? Is this just kind of another money-making scheme, et cetera?” But I think it’s a little bit more complicated than that because there is a legitimate legal argument here and, by the way, the law actually hasn’t been completely settled and I’ll give you my opinion on how I think it should go in a second but let’s talk about the history a little bit. Like, for example, there was a UFC fighter, Carlos Condit. I’m not familiar with who he is but, basically, in a videogame called UFC Undisputed, there was a tattoo of some lion and so forth. This tattoo artist named Victor Escobedo was awarded $22,000. He originally asked for $4.1 million so I think he was looking for a windfall but he was awarded some money. But most of these cases, like there was another case with Colin Kaepernick. Is he a football player?

MATT: Yeah, he was the quarterback for the 49ers but they benched him these past years but he’ll be back, I think.

NASIR: I heard he’s terrible.

MATT: Almost won the Super Bowl a few years ago so I think he’ll be back.

NASIR: Yeah, I heard he’s terrible but anyway. So, apparently, another tattoo artist or two tattoo artists actually sued Madden ’15 – so this was 2015 – which, by the way, comes out in 2014 for 2015, I think but that’s another issue. And so, in that case, I think they ended up settling, and a lot of these do end up settling, right?

MATT: Right.

NASIR: From a legal perspective, you know, there’s not a lot of precedence but we can still default back to regular copyright law as well.

MATT: Yeah, and it is unsettled in part because, like you just said, most of these just settle out and I think the big one that I found was Mike Tyson facial tattoo.

NASIR: Oh, yeah, that was another one, too.

MATT: Would this have been Hangover 2 I think when he had this? I don’t know if he had it in the first Hangover or not, but the tattoo that ran down his face, it was in Hangover 2 and that’s why they were saying there was infringement on that.

NASIR: I think that was settled, too.

MATT: Yeah, they ended up dropping it so I assume there was some sort of settlement. But the reason that’s important or that history is important is a couple of the exhibits on this complaint that was filed against the videogame, the calculation of their damages is based on an amount that was paid out at that UFC one that you mentioned – Escobedo?

NASIR: Yeah, Escobedo.

MATT: Yeah, he was paid $22,500 and so they did this six-step calculation on how that was calculated and how it applies to the videogame sales for NBA 2K15 or 16. They did some sort of multiplier for Lebron James because he was on the cover, I believe – this is NBA 2K14. So, they do this full-blown calculation to get to $1.14 million.

NASIR: Oh, nice!

MATT: I mean, that’s a little bit of help, I suppose. Who knows what calculation ultimately is going to end up determined? But the main thing here is two of the exhibits are correspondence sent from these owners of the copyrights to this company so there was clearly some sort of – and they referenced phone calls as well. So, it’s not like the game didn’t know that these people owned the copyrights. I mean, based on what we have here, it seems like they were put on some sort of notice about these.

NASIR: Yeah, I’m sure they’re probably playing up the notice factor and that they still went ahead and portrayed the copyright and so forth. But what’s I think also interesting is that the NBA and also other sports leagues, they are aware of this issue in the sense that, you know, just like anything, once one successful lawsuit is filed, then everyone is going to kind of follow suit, so to speak – no pun intended. And so, there was a concentrated effort by – I believe – the players’ union or whatever to encourage these players who are getting tattoos, like, tell them, “Look, we’re going to have trouble with copyright infringement unless you get a license waiver from the tattoo artist themselves and make sure you get that. Of course, some did, some didn’t. I think the thought was that the NBA or the players’ association would help with that effort and they would think, “Well, if the players ask, then I’m sure the tattoo artist would agree or if you pay them a little extra, et cetera, then it’ll happen.” But it doesn’t seem like that actually occurred.

MATT: Yeah, that was – surprisingly – NFL that never has their acts together in 2014. I guess that was the players’ association so maybe that’s why. Yeah, they said, “If you want your tattoos to appear on merchandise, videogames, et cetera, you need to get waivers from the artist,” which, to me, the artists are just going to say, “Oh, I can actually make more money off of this. Why should I sign a waiver? There’s no incentive for me to do so.” I mean, let’s say I’m a tattoo artist and my tattoos are shown on these games, nobody’s going to know that I’m the one that did the tattoo.

NASIR: Exactly.

MATT: So, why would I do a waiver for that? I mean, I guess, possibly there’s a handful of people that would somehow Google it and find out.

NASIR: Yeah. But, at the same time, if you asked the tattoo artist, “Hey, can you sign this waiver?” they’d be like, “Yeah, sure, I don’t care.”
This is how I see it and I can kind of lay it out – I think – simply from two perspectives. Let’s just take the perspective from the tattoo artist. If you take any artist and you draw a painting and you give it to somebody and that person holds the painting and then that person holding the painting is portrayed in commercials or what-have-you and the painting itself is part of the character of that person then, yeah, the original artist would think that they would have a legitimate right to say, “Hey, look, you’re using that image and reproducing it. And so, therefore, regular copyright laws apply.” With a tattoo artist, the only difference is that, okay, instead of holding a painting, it’s just something on someone’s skin.

MATT: Yeah.

NASIR: But I think that would be kind of the best fair argument as to why they should be compensated. But here is I think a substantial counter-argument is that you’re not giving them a painting. You are putting something on someone’s skin that’s semi-permanent that, by nature, that any time that that person is portrayed, then anything on them is going to be portrayed. Therefore, all of a sudden, by you putting something on their face or on their skin, you have an indefinite ownership of what’s on their property and limitation to what they can do with themselves, right? Because, in theory, if Lebron James wants to be depicted in a videogame, if this law stands in the sense that they need a copyright waiver, then he can’t do that. It has to be an altered depiction of him, you know? A depiction which has his tattoo removed. So, I think, from a fairness perspective, even if the district court – or I assume this is a federal court since it’s copyright – even if the district court actually holds in favor of the tattoo artist, I think, in the long term, through appellate work or through maybe a change in legislation but more likely I think in the judicial process, the tattoo artists are going to lose eventually because, if you take it to its full extent, it just doesn’t make sense. What do you think?

MATT: I was going to quickly say one thing we didn’t catch on here – or maybe you did and didn’t mention it – and then I’ll answer your question.

NASIR: Oh, I caught everything. I catch everything, I should say.

MATT: The people that first reached out to the videogame about kind of warning them about this potential copyright infringement was the same person that was with Mike Tyson is not the lawyer that ultimately filed this lawsuit.

NASIR: Oh, okay.

MATT: I mean, it’s an interesting wrinkle to it.

NASIR: Interesting.

NASIR: And you’re probably right but I think, in 2K game’s perspective, my advice to them is like, “Look, you know, unless you’re optimistic that your players are going to be depicting for not only NBA 2K but all your 2K games including NFL, including baseball or whatever, that they’re going to get waivers from the tattoo artists then, okay, fine. Settle. But, if not, if you keep settling these cases, then, as soon as you settle this one, then it’s going to be the next one and the next one. Or you’re just going to have to get rid of depiction of tattoos.” And, if I know the NBA, that’s pretty common, right? It seems like every NBA player has some tattoos on his arms, legs.

MATT: Yeah, I think there’s a good percentage of them that do.

NASIR: I mean, you play basketball. I mean, you have 32, if that tells anything.

MATT: Yeah. Well, the interesting thing, I mean, the players, they have to give their consent to be part of the game as well. Maybe, if you take the tattoos off of them, they’re going to say, “Well, this isn’t my real likeness either.”

NASIR: Maybe.

MATT: You are more of a videogame expert than I am but I don’t know if you’re aware of this. You know, NBA Jam which was like the real popular two-on-two basketball game?

NASIR: Yeah.

MATT: Kind of ridiculous. So, Michael Jordan – I don’t know if it was in all versions but definitely in one of the versions – refused to be in the game.

NASIR: But then, you can unlock him somehow, right?

MATT: Well, I don’t know – maybe. That might have been another version.

NASIR: If I recall, there was one that he wasn’t in the game but, somehow, you could do something – one of those secret codes or whatever. I feel like I’m just making it more fun than it is.

MATT: Yeah, because he refused to allow his likeness to be part of the game.

NASIR: But there’s been other videogames too that basically didn’t get permission. Like, they would do silly stuff. They would make it more generic but have the same player numbers and things like that, and they would still get into trouble for that because, even if you kind of change the look a little bit, but if there’s enough resemblance – or a likelihood of confusion is the standard, of course – then you wouldn’t be permitted to do that either.

MATT: Yeah, you have your good takes on this. What about this situation?

NASIR: Sure.

MATT: Let’s say me and my 32 NFL logos – they’re all logos so these are trademarked logos of the NFL or the teams or whoever – they’re visible on my arm and then they put me in the videogame. So, we’ve got possible trademark infringement and then I guess it won’t be copyright infringement at this point. Who’s going to be responsible here?

NASIR: Yeah, that’s actually an interesting point. I think there has been cases where someone put something on their – well, I don’t know, that’s a tough one. Good thing you’re not asking a lawyer that question.

MATT: Well, because the deal here is this is creative work and so that’s why they’re saying copyright infringement.

NASIR: Basically, if you take someone else’s trademark and put it on you and then that’s reproduced, yeah.

MATT: Yeah.

NASIR: Basically, assuming that the tattoo artists don’t have a case here, then what a trademark order – or even another copyright order – have a case where a tattoo artist used someone else’s copyright or trademarked logo and put it on there. That’s interesting.

MATT: Yeah, it was something I thought of. That was my onion analogy from earlier – how it goes in.

NASIR: Ah, okay.

MATT: Well, if you see the copyrights in particular, if you read the titles, it has this 330 in flames tattoo artwork, there was one about a lion’s head tattoo artwork. It’s just funny to go through and read what these are. Script of a scroll with clouds and doves.

NASIR: I always think about tattoos… I always compare them to bumper stickers in a way. It’s like, okay, if you’re going to put a bumper sticker, like, most people put a lot of thought into it, you would think. But then, you see some bumper stickers that is like, out of all bumper stickers in the world, you chose that one to make your statement and to be part of you to make it your personality. It’s like, just by looking at that, people have all these predispositions of who you are as a person. Tattoos are a very similar way and it’s very hard, I mean, now, all of a sudden, it’s like, “Okay, in order to represent me, I’m going to put a lion’s head on my shoulder and that’s going to be like that’s me,” right? I don’t know. It’s a little too philosophical for this, I suppose.

MATT: The bumper stickers I like are the ones of the presidential candidates that don’t end up getting elected.

NASIR: Yeah.

MATT: They’ll be there, like, four years later, it’s still there. Like, I’ll still see McCain.

NASIR: I think that was 2008.

MATT: McCain?

NASIR: Yeah, wasn’t it?

MATT: I was thinking it was more recent because Sarah Palin or Tina Fey was just on as Sarah Palin on SNL so I was like, “They can’t be running this eight years later,” but I guess they are.

NASIR: No, she’s still around.

MATT: Yeah, all right. Fair enough.

NASIR: Well, thanks for joining us, everyone.

MATT: Yeah, keep it sound and keep it smart!

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Legally Sound | Smart Business covers the top business stories with a legal twist. Hosted by attorneys Nasir N. Pasha and Matt Staub of Pasha Law, Legally Sound | Smart Business is a podcast geared towards small business owners.

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