Court Finds Tattoos in Basketball Video Game are Fair Use

The Southern District of New York District Court issued an opinion in an ongoing between Solid Oak Sketches and Take-Two Interactive Software. The court granted the defendant video game developer’s motion for summary judgment, finding the digital replication of basketball players’ tattoos in a game does not constitute copyright infringement.

Solid Oak Sketches is represented by Heitner Legal, the Law Offices of Paul S. Haberman, as well as Matthew M. Sprtitz, Esq. Defendants are represented by Kirkland & Ellis.

The defendants produce basketball video games, which depict various NBA players, including their tattoos. Solid Oak alleges that defendants infringed on the copyrights it owns for five tattoos depicted on three professional basketball plaers, Eric Blesdoe, LeBron James, and Kenyon Martin. These appear in the 2K14, 2K15, and 2K16 basketball games.

The defendants countered that while Solid Oak has an exclusive license to the tattoos it “is not licensed to apply the tattoos to a person’s skin, and Solid Oak does not hold any publicity or trademark rights to the Players’ likeness.” Rather, the players gave the NBA the right to license their likeness, which would include their tattoos, to third parties, including Take-Two. Take-Two received a license from the NBA and permission from the players.

For example, LeBron James’s “Child Portrait” and “330 and Flames” tattoos were inked by tattoo artist Justin Wright and Deshawn Morris (also known as Shawn Rome), respectively. Rome also inked the “Script with a Scroll, Clouds and Doves.” Each tattoo artist knew that James would make public appearances and would be on television and other media, therefore, the defendants argue, the tattoos have become part of his likeness. Rome stated that when he inked James he “knew that Mr. James was a professional basketball player with the [NBA]” therefore “it was likely that Mr. James was going to appear in public, on television, in commercials, or in other forms of media like video games.” He knew these would appear on LeBron James in public. Rome “intended that [the ‘330 and Flames’ tattoo] become a part of Mr. James’s likeness and part of his image.” Flames and birds are common images for tattoos. Additionally, Solid Oaks did not license the drawing used for the “Script” tattoo, which came from a drawing in Rome’s sketchbook.

The NBA 2K video games depict many aspects of an actual NBA game, from the crowd, shoe squeaks against the court floor to visual elements such as fans, players on the sideline, coaches, and referees. The game includes player tattoos “to accurately depict the physical likeness of the real-world basketball players as realistically as possible.” However, during actual gameplay it is hard to clearly see the tattoos. The defendants state that the “Tattoos appear merely as ‘visual noise,’ ‘no more noticeable than a simulated player’s nose shape or hairstyle.’” The tattoos were included for depiction, not for the same reason the players originally got the tattoos – self-expression.

The court stated that at no point during the video clips provided by Take Two were the “[t]attoos discernable to the viewer.” They were either out of focus, blocked by another player, or obscured by player movement. Additionally, the tattoos were not depicted in marketing or advertising. The tattoos are not a reason why a consumer would purchase a given video game, the court found. The court also notes that Solid Oak has not profited from licensing its tattoos nor has it sold merchandise that depicts the tattoos.

The defendants have sought to dismiss the plaintiff’s complaint because “Plaintiff cannot prove its claim because Defendants’ use of the Tattoos is de minimis and Plaintiff is this unable to prove the key substantial similarity element of its cause of action.” They state their use of the tattoos and images “was pursuant to implied authorization granted prior to Plaintiff’s acquisition of any rights in the Tattoos.”

The court has granted the summary judgment dismissing the 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.” Additionally, the tattoos “only appear on the players upon whom they are inked, which is just three out of over 400 players.” Therefore, the odds are against one of those Players with their tattoos being selected. Additionally, because Defendants had a license for the game, they had implied license for the tattoos as part of the players’ likeness and the Players allowed Defendants to use their likeness.

A similar case involving the depiction of tattoos in a wrestling video game also developed by Take Two was filed earlier this month