Take-Two, the maker of the video game NBA 2K, argues in a motion filed yesterday that its display of certain player tattoos in the game is transformative “fair use,” and therefore does not violate the rights of a licensee, plaintiff Solid Oak:
Take-Two is not a rival tattooist that has replicated a creative design and inked it on a new person. Rather, its use is completely different in a massive, highly creative video game featuring a virtual world that only uses player tattoos to realistically capture how the players actually look.
Take-Two also argues that it would set a dangerous precedent to grant copyright protection in this case:
Here, Solid Oak admits that “NBA players appear in the telecasts of NBA games,” are “photographed and recorded playing basketball,” and “appear in advertisements for different products.” Moreover, it admits that images and videos of Messrs. Bledsoe, James, and Martin have been shown by “[s]ports news outlets,” as well as taken by “[s]ports photographers” and paparazzi (sometimes for inclusion in commercial publications). [LeBron] James, in particular, has appeared in “various advertisements,” “commercials,” and the “covers of magazines.”
If Take-Two’s motion is denied, Solid Oak will be able to use that decision to shakedown each of the publications and television programs in which those players have appeared, as well as any other video game publisher that depicts the Tattoos. . . . We know of no case reaching such a result. Doing so here would set a bad precedent affecting all bearers of tattoos and the companies that creatively depict them.