On Thursday, March 26, 2020, Judge Laura Taylor Swain of the U.S. District Court for the Southern District of New York granted summary judgment in favor of defendants, 2K Games, Inc. and Take-Two Interactive Software, Inc., in a lawsuit concerning five tattoos appearing in three basketball simulation video games. Plaintiff Solid Oak Sketches, LLC claimed copyright infringement of tattoos depicted on NBA players Eric Bledsoe, LeBron James, and Kenyon Martin in NBA 2K14, NBA 2K15, and NBA 2K16. The tattoos in question were included in the basketball simulation video games “[t]o further the goal of simulating an actual NBA game.”
The defendants moved for summary judgment pursuant to Federal Rule of Civil Procedure 56, which allows for summary judgment when the moving party demonstrates “that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Specifically, the defendants argued that Solid Oak Sketches, LLC could not prove its copyright infringement claim because the defendants’ use of the tattoos in question is de minimis and because the use of the tattoos in the video games was “pursuant to implied authorization granted prior to [Solid Oak Sketches, LLC]’s acquisition of any rights in the Tattoos.”
Judge Swain found that Solid Oak Sketches, LLC could not establish the substantial similarity requirement due to the de minimis use of the tattoos in question. Specifically, Judge Swain referred to the undisputed factual record showing that “average game play is unlikely to include the players with the Tattoos and that, even when such players are included, the display of the Tattoos is small and indistinct.” Further, Judge Swain found that the tattoos could not be identified or observed even when said tattoos appeared during gameplay due to the significant reduction in size, referring to a video showing the tattoos appearing out of focus and observable “only as undefined dark shading on the Players’ arms.”
As to Solid Oak Sketches, LLC’s implied license argument, Judge Swain found that the undisputed factual record supported “the reasonable inference that the tattooists necessarily granted the Players nonexclusive licenses to use the Tattoos as part of their likeness, and did so prior to any grant of rights in the Tattoos to Plaintiff.” Judge Swain referred to the fact that the three NBA players “‘have given the NBA the right to license their likeness to third-parties,’ and the NBA has granted such license to Take-Two.” Further, the three NBA players themselves granted Take-Two Interactive Software, Inc. permission to use their likeness.
Judge Swain also conducted a fair use analysis and concluded that “the uncontroverted evidence demonstrates that all four factors weigh in Defendants’ favor [such that] no reasonable fact finder could determine that Defendants’ use of the Tattoos in NBA 2K was not fair use.”
Additional Reading
Judge says ‘NBA 2K’ can replicate LeBron James’ tattoos, New York Post (March 29, 2020)
Solid Oak Sketches, LLC v. Visual Concepts, LLC et al (Case No. 1:2016cv00724)
Photo credit: Jamie Lamor Thompson / Shutterstock.com
