Court Swats Copyright Claims Against Use of The King's Tattoos in NBA2K
Headline: On March 26, 2020, the Southern District of New York granted summary judgment to defendants 2K Games and Take-Two Interactive Software in a copyright suit over the depiction of tattoos of certain NBA players in NBA2k games.
Background: Defendants’ NBA2k is a virtual basketball game of NBA teams and players. Plaintiff alleged that defendants infringed its exclusively licensed copyrights—five tattoos on NBA players Lebron James, Kenyon Martin, and Eric Bledsoe—by publicly displaying the works in versions of the game.
Holding: The Court held that defendants were not liable for copyright infringement for three reasons: (1) lack of substantial similarity because the use was de minimis; (2) implied license; and (3) fair use.
First, the tattoos as they appear in the accused games were not substantially similar to the tattoos licensed by plaintiff because they only appear on three out of 400 players in the game, the display of the tattoos when the particular player is chosen is small and indistinct, appearing as rapidly moving visual features of rapidly moving figures, and they are not featured on any of the game’s marketing materials.
Second, the video game companies had an implied license to use the tattoos as part of the players’ likenesses because the tattoo artists necessarily granted the players non-exclusive licenses to use the tattoos as part of their likenesses, knowing that the players were likely to appear in public, on television, in commercials, or in other media, before Plaintiff was granted the exclusive license on which its claims were based.
Third, the video game companies’ use of the tattoos in NBA 2k constituted fair use because, among other reasons, the tattoos were: reproduced in the game to most accurately depict the players and create a realistic game; minimized and obscured; an inconsequential portion of the game; not featured in any marketing material; incidental to the commercial value of the game; previously published, more factual than expressive, and not based on unique or expressive features; and not a substitute for the original tattoo designs and so were not likely to diminish their commercial value.
Practical Takeaways: This is a great result for defendants and other video game companies that seek to make realistic games. The case supports the use of copyrighted material in video games when that use is minimal, obscure, and an inconsequential portion of the game, and instead used to make the game more accurate and realistic.
A copy of the summary judgment opinion and order in Solid Oak Sketches, LLC v. 2K Games, Inc. et al., Case. No. 16-CV-724 (S.D.N.Y.) is located here.
By Ryan Tyz, the “Straight Shooter”