Sports video games have come a long way. The genre which began with two bats sliding up and down in Pong has evolved to give us games which bring to life every last aspect of sporting events, with astoundingly realistic representations of the players. Playing a game like Fifa or Madden NFL, you’ll rub shoulders with sporting superstars whose iconic features are replicated in exacting detail.
But the games developers’ amazing attention to detail has also whipped up controversy, and it’s all down to tattoos. Because, for quite a few years now, a big question mark has hung over just who owns the ink. Or, to be specific, who owns the rights to the ink.
At first glance, the answer seems easy: surely the players do. After all, the tattoos are part of their bodies, and they (hopefully) own their own bodies, right? Well, it turns out the legal issues are a bit more complicated than you might think.
A tangle over tattoos
In 2016, Take-Two Interactive Software, the makers of the blockbuster NBA 2K series of basketball games, were taken to court by a company called Solid Oak Sketches, which claimed to own the copyright to the tattoos emblazoned on players like LeBron James and Kobe Bryant – tattoos which had been replicated in NBA 2K without Solid Oak’s consent. As a result of this alleged infringement, Solid Oak demanded $800,000 in damages, as well as offering to license the tattoo imagery for $1.1 million.
It probably seemed to some onlookers like a silly, slightly absurd story of a small company trying to make a cash grab over a legal technicality. But the case highlighted the very real confusion over the fairest way to depict tattoos in the mass media. Many people might assume the players should be free to market their own bodies – and their tattoos – as they see fit, but shouldn’t the creators of the tattoo designs also be compensated?
Reporting on the lawsuit, ESPN Sport Business Reporter Darren Rovell summed up the argument of Solid Oak in one sentence: “It is a piece of art, and just because it’s on your body, it doesn’t mean you own it.”
LeBron James himself spoke out in defence of the software company, saying “I always thought that I had the right to license what I look like to other people for various merchandise, television appearances, and other types of creative works, like video games.”
He added: “My tattoos are a part of my persona and identity; if I am not shown with my tattoos, it wouldn’t really be a depiction of me.” By saying that, LeBron James cut to the heart of the controversy – this is more than just a question of money, it’s also about any athlete’s rights over their own bodies.
The lawsuit is ongoing, but it’s far from the first time tattoos in video games have been in the news. Back in 2014, the NFL Players Association ruled that football players had to get waivers from tattoo artists before their ink could be depicted in the bestselling Madden series of video games.
This came in the wake of a tattoo artist suing Electronic Arts for depicting tattoos he’d created for NFL player Ricky Williams in a game, NFL Street. This is why the very next edition of Madden, released after this ruling, featured only one player with any tattoos: Colin Kaepernick, who’d made the effort to obtain permission from the artist. Since then, the likes of Odell Beckham Jr and Mike Evans have followed suit.
Uncertainty and ambiguity
Adding to the ambiguity is the fact that some prominent tattoo artists have openly said they regard this as a non-issue. Take Gotti Flores, who spent upwards of 40 hours adding ink to the aforementioned NFL player Mike Evans. When approached by Evans for permission to have the tattoos depicted in Madden, Flores was bemused more than anything, saying “Really, it didn’t even matter to me. It was dope to have my tattoos on there.”
This issue has come up with the whole Solid Oak/NBA 2K furore, as Solid Oak Sketches isn’t a tattoo studio and wasn’t actually behind the creation of the contentious tattoos. In fact, Solid Oak is simply a company that purchased the licenses for the designs from the tattoo artists, who have complained they never wanted to take Take-Two Interactive to court.
According to them, they’d sold the license to their tattoo designs to Solid Oak on the understanding the company would use them in a new clothing line. One of the tattooists, Shawn Rome, bluntly said that the founder of Solid Oak was “just poaching on artists.”
Do such lawsuits mean “life-accurate” tattoos will become rarer in the digital realm? It’s hard to say. Even if actions by the likes of Solid Oak are successful, games developers can always purchase the rights to designs. Whether they actually will splash the cash or not is down to individual companies.
They might not deem it worth the cost, or simply choose to provide generic tattoo skins. With such a huge number of athletes sporting tattoos, purchasing the rights could prove too costly for gaming companies. Going with the generic skins option would certainly be easier on the games designers than having to painstakingly replicate real-life tattoos, and would also allow them to avoid controversial tattoos such as the assault rifle on Manchester City player Raheem Sterling’s leg.
It’s hard to predict how things will play out. In the meantime, sports buffs can carry on enjoying super-realistic tattoos in games like NBA 2K and Madden, not to mention games like Mike Tyson Knockout, which not only features uber-realistic depictions of the boxer, complete with his infamous face tattoo, but also incorporates the tribal design on some of the actual game symbols.
That’s a reminder of just how important tattoos can be to an athlete’s brand, and why this is one issue that promises to carry on inspiring debate both in and out of the courtrooms.
A controversy over tattoos in a video game? There was literally a controversy over an emote in Overwatch so this isn’t something that surprises me.
It is some weird legislation of course, but I think recreating art in a way that’s transformative would fall under fair use. Like the tattoo isn’t what should be considered here; someone had to also paint in the characters and animate them, all on a different medium as well, and that is more than enough to exemplify fair use. I think it’s closer to sampling than it is stealing, because you’re taking a piece of something that’s already there, but adding other elements to it as well (the game, that is). Think of taking the Mona Lisa and drawing your own character in the same pose as the Mona Lisa, or taking a music sample and interpolating that sample to create a hit dance song; they’re really no different.
And I would think of it this way. If I take a photo of someone (assuming privacy isn’t the issue), is there really anything wrong with that? Maybe defamation, if a person’s likeness was used in an ill manner, but that doesn’t seem to be the case, even for commercialized use. Of course, different countries will have arbitrary laws, and I think it’s hard for any developer to release any worldwide game in that case.