3 April 2018Copyright

Copyright clash over NBA players’ tattoos continues

A copyright dispute involving a video game’s depiction of tattoos on National Basketball Association (NBA) players is now set to proceed, after a US court rejected the game maker’s request for judgment.

On Friday, March 30 District Judge Laura Swain  dismissed the request for judgment based on the doctrine of fair use by  Take-Two Interactive Software at the US District Court for the Southern District of New York.

Solid Oak Sketches owns the rights to the tattoos on various NBA players including LeBron James, Eric Bledsoe, and Kenyon Martin, having paid various tattoo artists for an exclusive licence covering the art.

In February 2016, Solid Oak filed a  lawsuit against game maker Take-Two and game publisher  2K Games Inc, claiming that depictions of the tattooed stars in video game “ NBA 2K16” infringe Solid Oak’s rights.

In response, Take-Two claimed that Solid Oak was an “ opportunist” and filed the motion for judgment in August 2016. The game maker argued that its use of the tattoos was de minimis, or fair use, and the game’s virtual world only uses the player’s tattoos “fleetingly” to realistically capture the look of the players.

The doctrine of fair use permits the unauthorised, but limited and non-commercial, use of copyrighted content for a particular purpose.

“NBA 2K16” was released in September 2015 for Xbox and PlayStation. It allows users to compete using representations of the NBA’s basketball players.

Players and their tattoos have also featured in previous versions of Take-Two’s games. Solid Oak reportedly contacted Take-Two about a licensing deal related to the game maker’s use of the tattoo designs before the “2K16” version was released.

Solid Oak said the depiction of the art was not fair use as the tattoos are a “main design on the NBA players on which they are attached”. The use of them in the game is “clearly commercial” and Solid Oak’s right to license use of them is “impeded” by Take-Two’s unauthorised depictions, it added.

In the decision, handed down on Friday, Swain said that she needed a better understanding of how Take-Two’s game is played before deciding on whether the depiction of tattoos within it meet the “sufficiency threshold” of fair use.

At the current stage of the proceedings, “no objective perspective” on this can be ascertained and therefore the matter should proceed, she said.

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