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Judge Finds Use of NBA Player Tattoos in Video Game Is Not Copyright Infringement

LOS ANGELES, CALIFORNIA - MARCH 06:  LeBron James #23 of the Los Angeles Lakers celebrates his basket with Danny Green #14 during a 113-103 Laker win over the Milwaukee Bucks at Staples Center on March 06, 2020 in Los Angeles, California.  NOTE TO USER: User expressly acknowledges and agrees that, by downloading and or using this photograph, User is consenting to the terms and conditions of the Getty Images License Agreement.  (Photo by Harry How/Getty Images)
By Laura Temme, Esq. on March 31, 2020 9:53 AM

Last week, Take-Two Interactive Software finally overcame copyright infringement claims over its use of professional basketball players' tattoos in its NBA 2K video games. The plaintiff, Solid Oak Sketches, alleged the game violated their copyrights in five tattoos inked on NBA players Eric Bledsoe, Lebron James, and Kenyon Martin.

The game aims to give players a realistic view of a professional basketball game, including the appearance of real NBA players. Solid Oak holds an exclusive license to each of the tattoos at issue in the case, but those rights are watered down when the tattoos are inked onto someone's skin.

Video Game Gets Under Solid Oak's Skin

This case has been rattling around the courts for several years now. Solid Oak first filed suit against Take-Two in 2016. Take-Two filed a motion to dismiss, which was granted. Then, Solid Oak filed an amended complaint later in the year, with Take-Two filing three counter-claims for declaratory judgment. After even more back and forth, Take-Two moved for summary judgment, which was granted by U.S. District Judge Laura Taylor Swain in late March.

Art Imitating Life

Judge Swain found that Take-Two was not liable on three grounds. First, its use of tattoos in the video game was de minimis. The tattoos are not prominently featured in the game - instead, they simply add to the realism of how these three players are depicted. Plus, in regular gameplay, the chances of a user seeing the tattoos clearly were slim. The tattoos are much smaller in the game, and the player figures often move fast.

Second, Judge Swain agreed that Take-Two was protected by fair use. The analysis hinged on Take-Two's transformational use of the tattoos. The images were initially created as a way for the real NBA players to express themselves, while they were reproduced in the video game to accurately depict the players.

Don't Hate the Player Or the Game

Finally, the court held Take-Two had an implied license to use the tattoos in NBA 2K. James, Bledsoe, and Martin gave the NBA the right to license their likenesses to third parties, and the NBA, in turn, granted such a license to Take-Two. The artists who inked the tattoos even acknowledged that they knew the tattoos would be displayed when the players were in public and would become a part of their likeness. And so, Judge Swain held, Take-Two's use of the tattoos in the game graphics was permissible.

Peter Welch, Senior Vice President and Deputy General Counsel of Publishing for Take-Two, told Reuters that this decision will protect the personal expression of those who choose to get tattoos as well as those who create lifelike video games.

Related Resources:

2nd Circuit Upholds NYC Graffiti Landmark as Protected Art (FindLaw's Second Circuit)

Copyrights, Partying, and Bulls--t: Second Circuit Affirms Dismissal of Claim Against B.I.G (FindLaw's Second Circuit)

Ninth Circuit Asked to Weigh In on "The Shape of Water" Copyright Suit (FindLaw's Ninth Circuit)

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