Readers of this blog may
remember that Solid Oaks Sketches filed a copyright infringement suit
against Take-2 Software, the maker of
the NBA 2K video game, claiming that
its reproduction of several tattoos worn by famous basketball players was
copyright infringement. The case is still ongoing in the Southern District of
New York, and defendants filed this month a motion
for judgment on the pleadings, where they argue that the use was fair use. HT
to the Hollywood
Reporter.
Solid Oaks bought the copyright for the
tattoos of Eric Bledsoe, Lebron James, and Kenyon Martin, which were created by
several tattoo artists. These players appear in the NBA 2K game, complete with their tattoos. Solid Oaks claims this is
copyright infringement. Take-2 argues that the use is de minimis and fair use.
A
real-life depiction
The tattoos “only appear on the players on which they were inked in real life, not
other real-world players or fictional characters” (p. 13). Indeed, the NBA
2K game, which is updated every year, depicts over 400 current and retired NBA
players “realistically. …These depictions have realistic facial and
physical features… They wear jerseys and sportswear with the numbers, colors
and logos of their teams. The game even depicts NBA-branded socks” (p.9).
The tattoos at stake were each created
specifically for the players. As explained in the motion, “[e]ach
tattoo was created as a custom tattoo intended only for the player
on which it was inked… Thus, they are imbued with special meaning for the
players. For instance, Solid Oak admits that “Child Portrait Tattoo Artwork”
depicts LeBron James’s son… Similarly, “330 and Flames Tattoo Artwork” depicts
the number 330, which is the area code for Mr. James’s hometown” (p. 12).
Defendant argues that Plaintiffs “seek to hinder the ability to depict people
as they appear in real life” (p.6), and that Plaintiff is contending that these
famous basketball players must now seek its permission each time they appear in
public, in films, or when being photographed.
Use
is de minimis
There are 400 players available in the
video game, and so the tattoos only appear when the three players featuring the
tattoos which copyright is owned by plaintiff appear in the game. Also, the
tattoos appear very small in the game and thus are very difficult to see. For
Defendant’s the tattoos “are just one of
the myriad of elements that makeup NBA 2K” (p.13).
Use
is fair use
Defendant is also arguing that it “is not
a rival tattooist that has replicated a creative design and inked it on a new
person. Rather, its use is completely different in a massive, highly creative
video game featuring a virtual world that only uses player tattoos to
realistically capture how the players actually look. Each of the factors that
courts consider supports a finding of fair use.”
Defendant reviewed each of the four fair
use factors and argued that each of the factors is in its favor.
The first factor, the purpose and character
of the use, is in Take-Two’s favor because it “uses the Tattoos for a different purpose than that for which they were
originally created. While the Tattoos originally were created as the NBA
players’ self-expression, Take-Two uses them merely to replicate how the
players appear in real life.”
The second factor, the nature of the
copyrighted work, should also be in Defendant’s favor because “Take-Two uses them to depict the world
accurately.”
The third factor, the amount and
substantiality of the portion used, should be in Defendant’s favor because the
“use was reasonable given that its
purpose was to depict real life accurately, and using any less of the Tattoos
would defeat that purpose.”
The fourth fair use factor, the effect of
the use upon the potential market, should be in Defendant’s favor because
Plaintiff “admitted that it is
contractually prohibited from inking the Tattoos on other people, meaning that
Take-Two’s use cannot harm that market.”
What
about right of publicity?
This is a copyright infringement suit and
the players are not parties in the suit. However, one could imagine that they
could file a suit against the owner of the copyright of their tattoos for tortious
interference in contractual relations, if not owning the copyright of their
tattoos would prevent them from licensing their likeness. On the other hand,
one can argue that the owner of the copyright has the right to be financially
compensated if the work is reproduced, especially for in a commercial venture.
These players are celebrities, but our
likeness is more and more used for marketing purposes. A few thousand followers
on social media may land us all a lucrative marketing deal. If we sports tattoos
but do not own their copyright, should we secure a license before posting
selfies? As Jack London once said [on Twitter]: Show me a man with a tattoo and
I'll show you a man with an interesting copyright license.
