15 September 2017Copyright

Tattoo company claims NBA game images not fair use

The makers of a National Basketball Association (NBA) video game can’t argue the use of NBA players’ tattoos in the game is fair use, according to a tattoo company.

Solid Oak Sketches, a company that owns the rights to tattoos on various NBA players, sued video game developer Take-Two in February last year at the US District Court for the Southern District of New York over “ NBA 2K16”.

The game features representations of the NBA’s most famous basketball players and allows users to compete with the players.

At the centre of the suit are eight tattoos on five basketball players—LeBron James, Kobe Bryant, Kenyon Martin, DeAndre Jordan and Eric Bledsoe.

Solid Oak claimed that Take-Two had depicted the tattoos in previous versions of the game, so the tattoo company contacted the publisher in July 2015 about a possible $1.1 million licensing deal to use the designs in the "2K16" version, but the parties could not reach an agreement.

The tattoo company had paid various tattoo artists in exchange for the exclusive licences to the copyrights containing the art at issue.

In August, Take-Two filed a motion for judgment (pdf) on the pleadings, claiming that Solid Oak was an “opportunist”.

The video game maker also said that its use of the tattoos was de minimis or fair use.

“[The] 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,” said Take-Two.

On Tuesday, September 12, Solid Oak hit back, stating that if its decision to enter into licensing agreements in a bid to “create commercial opportunities is considered opportunism, then plaintiff is guilty as charged”.

Solid Oak added: “However, there is nothing improper or illegal surrounding a company, whose principal may have no experience as a tattoo artist, entering into valid, binding contractual agreements with tattoo artists for exclusive licenses over their IP.”

The tattoo company argued that the use of the tattoos was not de minimis or fair use, as the tattoos are a “main design on the NBA players on which they are attached”.

According to Solid Oak, the tattoos are “prominently featured” and used in their entirety, and the purpose of the use is “clearly commercial”.

“Plaintiffs ability to license e tattoos to third parties, including other video game manufacturers, is impeded by defendants’ refusal to pay for the IP of plaintiff that it is using,” said the suit.

Did you enjoy reading this story?  Sign up to our free daily newsletters and get stories like this sent straight to your inbox

Today’s top stories:

Michelin settles design patent suit with repair company

Baskin-Robbins sues former franchisee

Norton Rose bolsters New York IP office with new patent litigator

TM-intensive industries contributed 50% to Singapore’s GDP: INTA

Already registered?

Login to your account

To request a FREE 2-week trial subscription, please signup.
NOTE - this can take up to 48hrs to be approved.

Two Weeks Free Trial

For multi-user price options, or to check if your company has an existing subscription that we can add you to for FREE, please email Adrian Tapping at

More on this story

3 February 2016   A group of tattoo artists has sued the makers of a National Basketball Association video game, claiming that depictions of tattooed stars including LeBron James and Kobe Bryant infringe its designs.
3 April 2018   A copyright dispute involving a video game’s depiction of tattoos on National Basketball Association players is now set to proceed, after a US court rejected the game maker’s request for judgment.
19 April 2018   A tattoo artist has taken aim at World Wrestling Entertainment (WWE) and video game maker Take-Two Interactive Software in a copyright infringement suit.