Video game makers free to use NBA stars’ tattoos, court rules
Depicting sports stars’ tattoos in video games does not infringe copyright owned by the tattoo artist or their licensee, a US federal court has ruled.
In the first written judgment on tattoo copyright in the US, the US District Court for the Southern District of New York yesterday, March 26, ruled that video game developer and publisher Take-Two Interactive was free to reproduce the designs featured in the real-life tattoos of basketball players like LeBron James in its “NBA 2K” series.
Take-Two, and its subsidiary 2K, had been facing copyright infringement claims brought by Solid Oak Sketches, a tattoo licensing firm which purchased the copyright for James’ tattoos, as well as other basketball players Eric Bledsoe and Kenyon Martin.
The New York court yesterday granted Take-Two’s motion to dismiss Solid Oak’s claims on summary judgment. The court had previously thrown out Solid Oak’s request for attorneys’ fees
According to the court, when artists tattoo someone, they grant an implied, nonexclusive licence to their work where it can be reasonably expected to become part of a person’s likeness.
In the case of the basketball players, the artists would have known that they were well-known figures and likely to appear in public, on TV, and in the media.
“Defendants’ right to use the tattoos in depicting the players derives from these implied licenses, which predate the licenses that plaintiff obtained from the tattooists,” judge Laura Swain wrote.
Peter Welch, senior vice president and deputy general counsel at Take-Two, welcomed the decision, arguing it would “protect individuals’ personal expression when they choose to get tattoos, and safeguard the video game and other media industries’ creative choices, including the decision to depict people as they appear in real life”.
Irrespective of the implied licence, the reproduction of the tattoos in the “NBA 2K” games qualified as de minimis use, and did not require the consent of any copyright owner, the court concluded.
Judge Swain wrote that “no reasonable trier of fact could find the tattoos as they appear in ‘NBA 2K’ to be substantially similar to the tattoo designs licensed to Solid Oak,” as they cannot be identified or observed during gameplay.
The court found that the tattoos appear only fleetingly and are obscured by the rapid motions of the in-game players.
The judgment means Solid Oak’s complaint has been dismissed in its entirety, while the court also declared Take-Two’s use of the tattoos to be fair use and non-infringing.
