On February 1, 2016, Solid Oak Sketches LLC filed a copyright lawsuit in Manhattan against 2K Games, Inc. and Take Two Interactive Software, Inc., the companies responsible for creating the NBA2K video game franchise, for allegedly infringing tattoo artists copyrights in the tattoos they tattooed on LeBron James, Eric Bledsoe, and Kenyon Martin in versions 2K14, 2K15, and 2K16.
On Thursday, March 26, 2020, U.S. District Judge Laura Taylor Swain sweepingly ruled in favor of Defendants and granted their motion for summary judgment, declaring that the tattoo artists gave the players automatic licenses when they tattooed their bodies. Judge Swain wrote, "the tattooists necessarily granted the players nonexclusive licenses to use the tattoos as part of their likenesses[.]" She continued on by stating “the tattooists intended the players to copy and distribute the tattoos as elements of their likenesses, each knowing that the players were likely to appear ‘in public, on television, in commercials, or in other forms of media. … Thus, the players, who were neither requested nor agreed to limit the display or depiction of the images tattooed onto their bodies, had implied licenses to use the tattoos as elements of their likenesses. Defendants' right to use the tattoos in depicting the players derives from these implied licenses[.]”
Additionally, Judge Swain ruled that the use of the tattoos in the video game was de minimis (too minor) to rise to the level of copyright infringement for several reasons, including that the tattoos only appear on 3 out of 450 possible NBA players, and that the “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.”
Not only did Judge Swain rule in favor of the “implied license” defense and state that the tattoos were de minimis within the game, but she also ruled that Take-Two Interactive was shielded by the Fair Use doctrine in copyright law, asserting that the video game had made a “transformative use” out of the tattoos. The Fair Use doctrine allows people other than the copyright holder to avoid copyright infringement and reproduce another's work “for purposes such as criticism, comment, news reporting, teaching …, scholarship, or research….” 17 U.S.C.A. § 107. The factors to be considered when reviewing for transformative use are (i) whether the works have different purposes, (ii) the size of the reproductions, (iii) whether the expressive value of the reproduced material is minimized, and (iv) the proportion of copied material. Although the video games depict “exact copies” of the tattoos, “its purpose in displaying the tattoos is entirely different from the purpose for which the tattoos were originally created. … Defendants reproduced the tattoos in the video game in order to most accurately depict the players[.]” Next, the Judge found that the tattoos were “significantly reduced” in size, “the tattoos appear at 4.4% to 10.96% of their actual size” which make the tattoos “difficult to observe. Thus, NBA 2K does not ‘offer more than a glimpse of [the tattoos'] expressive value[.]” Following this line, Judge Swain continued to state that the tattoos “are infrequently and only imprecisely observable[,]” which shows that “the tattoos were not included for their expressive value, but rather to most accurately recreate certain NBA players' likenesses.” The court also found that the tattoos “constitute an inconsequential portion of NBA 2K. … [T]hey comprise only 0.000286% to 0.000431% of the total game data[.]” Finally, Judge Swain agreed with Defendants' expert that consumers do not buy the video games for the tattoos on the players.
While this may be a small loss for the tattooists and their creative medium, this is a victory for video game creators, their medium, and similar creators. It is imperative that video games, films, television, etc. depicting real life or historical elements, are able to accurately and truthfully recreate what has happened in the real world.
Practically speaking, if the tattooists were to have won the case, celebrities like LeBron James would have to request permission from each and every tattooist they have ever received a tattoo from, every time their own body may be used in media. Not only is that not feasible, but it takes the rights to one's own body, and transfers it to some other person who may have only ever interacted with the celebrity one time.
Plaintiff Solid Oak is represented by Darren A. Heitner of Heitner Legal PLLC and Matthew M. Spritz.
Defendants 2K Games and Take-Two Interactive are represented by Dale M. Cendali and Joshua L. Simmons of Kirkland & Ellis LLP.
The case is Solid Oak Sketches LLC v. Visual Concepts LLC et al., case number 1:16-cv-00724, in the U.S. District Court for the Southern District of New York.