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Entertainment companies have plenty to worry about these days. But one concern that’s been looming for years may have been alleviated on Thursday thanks to a New York federal judge’s summary judgment opinion. That being, getting into copyright trouble for depicting someone’s tattoo.
Solid Oak Sketches, which claimed to own copyrights to tattoo designs featured on the bodies of NBA stars LeBron James, Kenyon Martin and Eric Bledsoe, filed its lawsuit back in early 2016. The plaintiff targeted video game publisher Take-Two Interactive over allegedly unauthorized reproductions of those tattoo designs in the NBA 2K franchise. Solid Oak was able to get past a motion to dismiss, which led to discovery and even a declaration by James himself where the NBA icon stated, “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.”
Turns out he was right.
Take-Two has just beaten the lawsuit — and won big enough to potentially resolve questions that have been circulating in legal circles ever since one tattoo artist once sued and settled with Warner Bros. over The Hangover Part II over a reproduction of Mike Tyson’s face tattoo. In fact, Thursday’s opinion comes just a week after a judge in a separate case refused to end a tattoo copyright lawsuit against WWE.
“Defendants are entitled as a matter of law to summary judgment dismissing Plaintiff’s copyright infringement claim because no reasonable trier of fact could find the Tattoos as they appear in NBA 2K to be substantially similar to the Tattoo designs licensed to Solid Oak,” writes U.S. District Court Judge Laura Taylor Swain. “The Tattoos only appear on the players upon whom they are inked, which is just three out of over 400 available players. The undisputed factual record shows that average game play is unlikely to include the players with the Tattoos and that, even when such players are included, the display of the Tattoos is small and indistinct, appearing as rapidly moving visual features of rapidly moving figures in groups of player figures. Furthermore, the Tattoos are not featured on any of the game’s marketing materials.”
The judge adds, “When the Tattoos do appear during gameplay (because one of the Players has been selected), the Tattoos cannot be identified or observed. The Tattoos are significantly reduced in size: they are a mere 4.4% to 10.96% of the size that they appear in real life. … Further, the Players’ quick and erratic movements up and down the basketball court make it difficult to discern even the undefined dark shading.”
According to the opinion, not only can’t Solid Oak convince a reasonable fact finder of substantial similarity between real-life tattoos and video game tattoos but also that use of the copyrighted material is de minimis.
And the opinion (read in full here) doesn’t rest there.
Writes Swain, “Here, the undisputed factual record clearly supports the reasonable inference that the tattooists necessarily granted the Players nonexclusive licenses to use the Tattoos as part of their likenesses, and did so prior to any grant of rights in the Tattoos to Plaintiff.”
In other words, the video game maker had an implied license to use the tattoos through its agreements with the NBA, which itself had a deal with the players.
Finally, the judge gives Take-Two (represented by Kirland & Ellis attorney Dale Cendali) the message that it wished to convey to others, namely by granting a counterclaim seeking a declaration that their use of tattoos in a video game constituted fair use.
Swain writes that all the factors governing analysis of fair use tip towards the defendant. With regards to the purpose and character of use, for example, she writes, “Here, the undisputed evidence demonstrates that Defendants’ use of the Tattoos is transformative. First, while NBA 2K features exact copies of the Tattoo designs, its purpose in displaying the Tattoos is entirely different from the purpose for which the Tattoos were originally created. The Tattoos were originally created as a means for the Players to express themselves through body art. Defendants reproduced the Tattoos in the video game in order to most accurately depict the Players, and the particulars of the Tattoos are not observable. The uncontroverted evidence thus shows that the Tattoos were included in NBA 2K for a purpose — general recognizability of game figures as depictions of the Players — different than that for which they were originally created.”
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