'NBA 2K' Tattoos a "Ploy" to Draw Consumers In, Not Fair Use, Filing Argues

Solid Oak says if licensing tattoo images is "opportunism," then it's "guilty as charged."
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LeBron James

Take-Two can't argue its depiction of NBA players' tattoos in video games is fair use to avoid paying license fees, according a new filing from the company that's suing the gaming giant for copyright infringement.

Solid Oak Sketches sued the videogame maker in 2016, demanding more than $1.1 million to license eight tattoo designs featured in NBA2K.

The company says it paid artists who inked the likes of the NBA's LeBron James, Eric Bledsoe and Kenyon Martin in exchange for the exclusive licenses for the tattoos and it deserves to be "made whole." Meanwhile, Take-Two has derided the endeavor as opportunistic.

Take-Two in August filed a motion for judgment on the pleadings, arguing that its display of players' tattoos is either de minimis or fair use. It also warned the court of potential fallout from a decision in Solid Oak's favor. 

"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," writes Take-Two attorney Dale Cendali. "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."

In a Tuesday filing, Solid Oak attorney Darren Heitner says his client isn't asking for NBA players' permission to step into public, but rather asking companies that stand to commercially benefit from the use of the tattoos be ordered to pay a royalty for that use.

"If Plaintiff’s decision to enter into exclusive licensing agreements with the Tattoos’ artists in attempt to create commercial opportunities is considered opportunism, then Plaintiff is guilty as charged," writes Heitner. "However, there is nothing improper or illegal surrounding a company, whose principal may have no experience as a tattoo artist, entering into valid, binding contractual agreements with tattoo artists for exclusive licenses over their intellectual property."

Solid Oak argues the tattoo use is neither de minimis nor fair use.

"[T]he Tattoos are used in their entirety and Plaintiffs ability to license the Tattoos to third parties, including other video game manufacturers, is impeded by Defendants’ refusal to pay for the intellectual property of Plaintiff that it is using," writes Heitner. "[I]t appears that the Defendant's use of the tattoos is purely commercial and a ploy to enthrall consumers to the realism of the games."

Take-Two has argued that the tattoos appear significantly smaller than they do in real life, especially when the game view is of the full court. Solid Oak suggests if the tattoos "were so minute," the company could have changed them to "avoid improper use."

Heitner also argues because there are "too many potential permutations" involving players' usage of the game and how much time the tattoos could potentially appear onscreen, it's improper to decide whether the use is de minimis in a motion for judgment on the pleadings.