Court Manages To Get NBA2K Tattoo Copyright, Trademark Case Exactly Right

from the he-shoots-he-scores dept

Somehow, it's been nearly four years since a tattoo company, Solid Oak Sketches, decided to sue 2K Sports, the studio behind the renowned NBA 2K franchise, claiming that the game's faithful representation of several stars' tattoos was copyright infringement. The company claimed to own the copyright on the design of several players' tattoos, including most famously LeBron James, Kobe Bryant, and DeAndre Jordan. The claim in the suit was that 2K's faithful depiction of the players, whom had collectively licensed their likenesses via the NBAPA, somehow violated Solid Oak's IP rights.

Put another way, it could be said that by branding the player with Solid Oak's designs, the company seems to think it can control the players' ability to profit off of their own likenesses. That this draws the mind to very uncomfortable historical parallels apparently was of no issue to Solid Oak.

Well, while 2K Sports failed to get the court to dismiss the case back in 2018, it has more recently won the case on summary judgement, with the court quite helpfully getting everything right and declaring the depiction of tattoos in video games in this manner to be Fair Use.

The defendants have sought to dismiss the plaintiff’s complaint because “Plaintiff cannot prove its claim because Defendants’ use of the Tattoos is de minimis and Plaintiff is this unable to prove the key substantial similarity element of its cause of action.” They state their use of the tattoos and images “was pursuant to implied authorization granted prior to Plaintiff’s acquisition of any rights in the Tattoos.”

The court has granted the summary judgment dismissing the infringement claim because “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.” Additionally, the tattoos “only appear on the players upon whom they are inked, which is just three out of over 400 players.” Therefore, the odds are against one of those Players with their tattoos being selected. Additionally, because Defendants had a license for the game, they had implied license for the tattoos as part of the players’ likeness and the Players allowed Defendants to use their likeness.

The full filing, embedded below, goes into far more detail. And, frankly, it's quite nice to see a court get this so right. It's clear the court in this case took care and time to go through the material brought by both parties and carefully weigh the claims against Fair Use. Given such careful examination, the conclusions were fairly obvious. In addition to the rationale above, the court notes that the tattoo artists in this case, despite claiming copyright infringement for the de minimis reproduction of tattoos in the game, couldn't even reproduce them themselves given the likeness rights of the players.

Solid Oak has neither licensed the Tattoo designs nor sold merchandise depicting the Tattoos. (Def. 56.1 ¶¶ 107-08.) Solid Oak’s owner, Matthew Siegler, testified that he would “need permission from the players . . . to not infringe on their right of publicity,” in order to move forward with a business selling “dry wick apparel” bearing the Players’ tattoos. (Cendali Decl., Ex. A at 389.) Solid Oak does not have a license to use the Players’ publicity or trademark rights. (Def 56.1 ¶ 102.) Solid Oak has not proffered any evidence indicating that it has a prospect of obtaining such rights.

And so ends one of the most annoying video game IP lawsuits of all time. The shame of it, really, is that it took the system four years to reach the only logical conclusion: someone getting a tattoo doesn't somehow destroy their ability to profit off of their own likeness.

Filed Under: basketball, copyright, deandre jordan, fair use, kobe bryant, lebron james, nba 2k, tattoos, video games
Companies: 2k sports, solid oak sketches


Reader Comments

Subscribe: RSS

View by: Time | Thread


  • This comment has been flagged by the community. Click here to show it
    icon
    Frank Lou (profile), 1 Apr 2020 @ 11:39pm

    How to Get Free Online Courses during Home Quarantine?

    2020 is not going that much great as most of the countries have announced complete lockdown. People are staying at homes to avoid the spread of Covid-19. Things are pretty bad out there. Are you one of those who want to make the home quarantine period useful? Do you want to learn trending skills online? If you want to enroll in online courses for free or at discounted prices, you need to check out coupon codes right now. We have the top discounted coupon codes for several top online training sites. Our coupon code categories cover the Udemy coupon codes and all other famous online training sites. We offer the most detailed and valid discounted coupon codes for big stores and sites. Learn Trending Skills 2020 If you are also in-home quarantine, we got your back. We are offering the discounted coupon codes for several online courses, and you can check the latest codes anytime. There are several online courses worth thousands of dollars that are free these days. Our collaboration with the top learning platform has managed to bring the most affordable online courses for you. It’s never too late to learn new skills, and if you have one-month in-home quarantine, you can easily learn the basics of any new skill. We have valid and working coupons for online courses like Udemy, and you can avail of these discounts now. If you want to excel in a specific field and want to enroll in advanced courses, its right time to get our discount coupon codes for 10% to 100% off, some of the courses are totally free of cost with limited seats. So, don’t be late and find the best suitable coupon code from our website and enjoy the learning experience for free. Limited Time Discounted Coupons There are some discounted coupons that are only available for a limited time. There are some online platforms like MOZ academy that have made most of their courses free for a limited time. These courses are available for free during the quarantine time. If you are at home and have a laptop with an internet connection, a whole new world of learning is waiting for you. Grab your laptop right now and search for your required courses, and we will certainly have discounted coupons for your course. All of our coupon codes for online courses are updated actively. Finding the required coupon code is worth your time, and you can easily learn a new skill without paying a single penny. Top Free Courses to Learn If you are interested in a particular field of studies, you can enroll in any specific course online. If you want to learn some new things to make your home quarantine period productive, you can learn these few courses online: Python Programming Training: This course is a perfect online training program for computer science students and engineers. Learning this online course can offer several opportunities later Programming Fundamentals: Well, this course is beneficial for every student. You will not only learn about the basics of programming, but you will also know how to solve real-world problems Writing with Flair: This course is offered on many platforms like Udemy and other famous online sites, and this course can help you in academic and professional life Graphic Designing: Either you are a student or a freelancer, learning this skill can help you with side income. If you are good at graphic design, you can easily make extra money by offering your services online.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 2 Apr 2020 @ 12:00am

    "Noooo!" screamed Slonecker. "Noooooooooo!"

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 2 Apr 2020 @ 2:35am

      Re:

      You're confused. The "Nooooo" screamer is John Smith. Slonecker will write up a wall of text complaining about how Masnick hurt the fee-fees of a copyright/patent lawyer Slonecker has a schoolyard crush on and another bunch of paragraphs of fuck all trying to masquerade as legal opinion. Until he's called out on it, then he complains that Masnick has fanboys and he doesn't.

      reply to this | link to this | view in chronology ]

      • identicon
        Anonymous Coward, 2 Apr 2020 @ 7:12pm

        Re: Re:

        I don't think there's a way to effectively parody Slonecker. Any attempts would probably have to start with sucking your own cock to get into the mood.

        reply to this | link to this | view in chronology ]

  • identicon
    Pegr, 2 Apr 2020 @ 5:58am

    Fair use?

    Work for hire!

    reply to this | link to this | view in chronology ]

  • icon
    Bergman (profile), 2 Apr 2020 @ 10:15am

    No photographs or videos allowed?

    If Solid Oak had prevailed, wouldn't that make it illegal to photograph or video record players in any way, including to televise games, without a license from Solid Oak?

    Are players actually stupid enough to sign a contract with Solid Oak stating that the tattoos engraved upon their own bodies are NOT a work-for-hire?

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 2 Apr 2020 @ 1:50pm

      Re: No photographs or videos allowed?

      If Solid Oak had prevailed, wouldn't that make it illegal to photograph or video record players in any way

      Probably not. Personal recordings are still fair use. Televising games for profit might've been illegal. I believe Congress already passed a law saying it's not infringing to take pictures that have copyrighted architecture or sculptures in the background. If things got so stupid they could do it again for tattoos.

      reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 2 Apr 2020 @ 12:05pm

    partial decision

    Did you want to maybe include the entire decision, instead of just six pages of the thirty?

    reply to this | link to this | view in chronology ]


Add Your Comment

Have a Techdirt Account? Sign in now. Want one? Register here



Subscribe to the Techdirt Daily newsletter




Comment Options:

  • Use markdown. Use plain text.
  • Remember name/email/url (set a cookie)

Close

Add A Reply

Have a Techdirt Account? Sign in now. Want one? Register here



Subscribe to the Techdirt Daily newsletter




Comment Options:

  • Use markdown. Use plain text.
  • Remember name/email/url (set a cookie)

Follow Techdirt
Special Affiliate Offer

Advertisement
Report this ad  |  Hide Techdirt ads
Essential Reading
Techdirt Deals
Report this ad  |  Hide Techdirt ads
Techdirt Insider Chat
Advertisement
Report this ad  |  Hide Techdirt ads
Recent Stories
Advertisement
Report this ad  |  Hide Techdirt ads

This site, like most other sites on the web, uses cookies. For more information, see our privacy policy. Got it
Close

Email This

This feature is only available to registered users. Register or sign in to use it.