Take-Two Fails To Get NBA2K Tattoo Copyright Lawsuit Dismissed

Copyright

from the written-in-ink dept

I’ll forgive you since it’s been two years, but hopefully you will remember our posts about a crazy copyright lawsuit back in early 2016 between a company called Solid Oak Sketches and Take-Two Software. At issue were Take-Two’s faithful depictions of several NBA stars in its NBA 2K series of games, including LeBron James and Kobe Bryant. The problem is that Solid Oak claims to have copyrights on several tattoos appearing on the skin of these players, all of which show up in the images of the game. Of course, Take-Two negotiates the rights for player likenesses with the NBA Players Association, meaning this lawsuit has the odd smell of a third party bickering over branded cattle. While Solid Oak is asking for $1.2 million in damages, Take-Two has pointed out that these sorts of statutory damages shouldn’t apply as the company only registered its copyrights in 2015. This fact leads a reasonable observer to wonder why the copyrights weren’t registered much earlier, were Take-Two’s use so injurious.

That question is of course tangent to the most central concern of why in the world any of this isn’t obvious fair use? Take-Two has First Amendment rights, after all, and its use of the eight tattoos in each iteration of the game is a hilariously small portion of each work. On top of that, the whole enterprise of the game is to faithfully depict reality with regards to each player whose likeness it has properly licensed through the NBAPA. None of this should strike anybody as a million dollars worth of copyright infringement.

And, yet, a court recently refused to grant Take-Two’s petition to dismiss the case, allowing this mess to proceed.

“While Defendants contend that the Tattoos in NBA2K are ‘observable only fleetingly’; ‘displayed only briefly’; ‘a small part of the graphical display’ when displayed; ‘sometimes obscured by other graphics’; ‘not displayed prominently’; and ‘sometimes displayed out of focus,’ Plaintiff denies each and every one of these characterizations of the Tattoos. Instead, Plaintiff contends that, if an NBA2K player selects Messrs. James, Martin and Bledsoe in a given game or series of games, or ’employs the broad range of the video game’s features to focus, angle the camera on, or make the subject tattoos more prominent,’ ‘the overall observability of the subject tattoos can be fairly significant.’ Thus, it is difficult to determine whether the substantial similarity is apparent to the ‘average lay observer,’ if what he or she is observing varies in each iteration of the game.”

I own several of these games and can attest that the observability of any tattoos on any player within them are fleeting at best. The whole point of the game is to be an action-packed basketball experience from a viewpoint of most of, or the entire, basketball court. Picking out individual tattoos is rarely possible other than in manual instant replay. And, sure, some players might use that replay feature, but not regularly and not as part of regular play. This smacks of a judge that needs only to be sat in front of a television or computer screen to see the game in operation in order to have reached the proper and opposite conclusion.

But Take-Two also made a First Amendment claim, arguing, as I did above, that granting tattoo artists the rights Solid Oak is claiming would be to allow tattoo artists to trump the likeness rights of a natural person. If that doesn’t strike you as plainly insane, it should. Yet the judge apparently considered all of this a question of visual accuracy and therefore denied the fair use defense.

“Because of the difficulties inherent in conducting a side-by-side comparison of the video game and the Tattoos, further evidence must be considered in connection with the fact-intensive question of the applicability of the fair use defense. As the differences between the Tattoos and Defendants’ use in the video cannot be resolved with assurance on a visual comparison of the works alone, Defendants’ fair use of the Tattoos is not so clearly established on the face of the [SAC] as to support dismissal.”

To be fair to the judge, often times the court is wary of dismissing early on in the trial process over fair use defenses that aren’t on very, very solid ground. That may be what is going on here. But if it is, this seems to be chiefly an issue of calibration, because Take-Two’s fair use claims are very strong, and the implications of Solid Oak succeeding in its lawsuit are both not in the original interests of copyright law and plainly horrifying when it comes to public persons and their ability to trade off of their own likenesses.

Hopefully a jury will be more grounded than the court.

Filed Under: basketball, copyright, fair use, kobe bryant, lebron james, tattoos, video games
Companies: solid oak sketches, take two software