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.
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