No Summary Judgment in NBA 2K Tattoo Case

A Northern District of Ohio judge released an opinion last week partially granting tattoo artist James Hayden’s motion for summary judgment, and rejecting defendant 2K Games’ opposing motion of the same type in a case surrounding the appearance of the plaintiff’s tattoos on digital replications of his real-life clients, NBA basketball players.

Per the opinion, and prior coverage, the plaintiff and his business own the copyright registration for the tattoos represented on six in-game players represented in recent entries in the defendant’s NBA 2K basketball video game franchise.

According to the opinion, the defendants filed a motion for summary judgment on the basis that the tattoos of the NBA players depicted are fair use.

The court also rejected 2K’s assertion that the plaintiff’s tattoos are not sufficiently original; for example, they argued that one of the tattoos is based on the fresco in the Sistine Chapel.

In rejecting this fair use defense, the judge wrote that “Plaintiff contests Defendants’ characterization of the Tattoos’ minimal size and relation to the whole video game.  Plaintiff maintains that the Tattoos are accurately and prominently displayed and can be clearly viewed by the users of the NBA 2K video games.  Plaintiff argues that the evidence will show that because consumers purchase the games for the Tattoos, Defendants are commercially benefiting from their infringement.”

The judge did not rule on the merits of the fair use claim, but said that they create enough of a material dispute of fact that should be resolved by a jury, not summary judgment. The judge made the same ruling as to 2K’s implied authorization defenses.

The plaintiff is represented by Calfee, Halter & Griswold as well as Renner Otto. The defendant is represented by Kirkland & Ellis and McDonald Hopkins.