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This year has been an epochal one for copyright with recent decisions upending much conventional wisdom about everything from embedded tweets to programming interface code. It’s time to add tattoos to the list thanks to a first-of-its-kind decision on Friday. In a multi-million dollar lawsuit over the reproduction of tattoos in the NBA 2K video game franchise, a New York federal judge has rejected video game publisher Take-Two’s motion to dismiss. Although the case is still at its early stage, the judge’s refusal to immediately declare that use of tattoos is either de minimis or fair use could cause television and movie producers to themselves think hard about what rights are needed when featuring body tattoos in their works.
The lawsuit comes from Solid Oak Sketches, which alleges acquiring rights from various tattoo artists who inked NBA superstars LeBron James, Eric Bledsoe and Kenyon Martin.
When the lawsuit was first brought in 2016, no judge had ever firmly declared that tattoo designs are copyrightable. One tattoo artist once sued Warner Bros. over Hangover 2 for a reproduction of Mike Tyson’s face tattoo. That case settled. Another dispute came from a tattoo artist who inked a UFC fighter and later asked a bankruptcy court to determine the value of his tattoo claim against videogame publisher THQ.
Copyright law protects original works of expression fixed in a tangible medium, but the question on a motion to dismiss filed by Take-Two was whether the use of tattoos was too fleeting to be considered an infringement.
U.S. District Court Judge Laura Taylor Swain isn’t ready to adjudicate this quite so readily.
“The Court finds that, with respect to the video game at issue, it is not possible to apply the qualitatively-focused ‘average lay observer’ standard,” she writes.
After some discussion of other cases involving other material such as a poster of a church picnic used in an HBO show, the opinion continues, “While Defendants contend that the Tattoos in NBA2K are ‘observable only fleetingly’; ‘displayed only briefly’; ‘a small part of the graphical display’ when displayed; ‘sometimes obscured by other graphics’; ‘not displayed prominently’; and ‘sometimes displayed out of focus,’ Plaintiff denies each and every one of these characterizations of the Tattoos. Instead, Plaintiff contends that, if an NBA2K player selects Messrs. James, Martin and Bledsoe in a given game or series of games, or ’employs the broad range of the video game’s features to focus, angle the camera on, or make the subject tattoos more prominent,’ ‘the overall observability of the subject tattoos can be fairly significant.’ Thus, it is difficult to determine whether the substantial similarity is apparent to the ‘average lay observer,’ if what he or she is observing varies in each iteration of the game.”
The judge thinks more fact-finding and presentation is in order to help her or a jury make a determination about the observability and prominence of the tattoos. Thus, the judge denies the motion as to de minimus without prejudice to renewal at a later stage.
Next, comes the question of fair use.
This is one just as important to others in the entertainment industry. In fact, Take-Two’s dismissal brief provided a big warning.
“If Take-Two’s motion is denied, Solid Oak will be able to use that decision to shakedown each of the publications and television programs in which those players have appeared, as well as any other video game publisher that depicts the Tattoos,” defendant argued. “”It would be illogical to allow Solid Oak to seek rents each time that a player bearing one of its tattoos commercializes his likeness, or worse, appears in public, and therefore arguably ‘publicly displays’ the Tattoos under copyright law. We know of no case reaching such a result. Doing so here would set a bad precedent affecting all bearers of tattoos and the companies that creatively depict them.”
But again, Judge Swain isn’t ready to wrap up the case at the early juncture. She notes that courts routinely reserve adjudication of fair use factors like the purpose and character of use, the nature of the copyrighted work, and the effect of the use upon the potential market to later stages of a case.
She writes, “Because of the difficulties inherent in conducting a side-by-side comparison of the video game and the Tattoos, further evidence must be considered in connection with the fact-intensive question of the applicability of the fair use defense. As the differences between the Tattoos and Defendants’ use in the video cannot be resolved with assurance on a visual comparison of the works alone, Defendants’ fair use of the Tattoos is not so clearly established on the face of the [SAC] as to support dismissal.”
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