In an opinion today, Judge Swain concluded that it was “fair use” for to the makers of the NBA 2K video games to depict players’ tattoos (see our prior coverage here). Judge Swain had earlier concluded the fair use defense was not enough to dismiss the case on the pleadings, but, following discovery, today concluded that summary judgment was appropriate.  She found that the factors used in determining fair use all favored the video game maker.
Continue Reading Judge Swain: Depicting NBA Players’ Tattoos in Video Game Is “Fair Use”

In the copyright case over the use of images of real NBA players’ tattoos in the NBA 2K video game (see our prior coverage here), Judge Swain on Friday denied defendants’ motion for judgment on the pleadings. She concluded that more discovery was needed to determine whether the tattoos were such a “de minimis” part of the game as to fall outside the copyright laws, or whether the depiction of the tattoos was “fair use”:
Continue Reading Judge Swain: Discovery Necessary to Determine “Fair Use” of NBA Tattoos in Video Game

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:
Continue Reading Video Game Maker Argues “Fair Use” of Images of NBA Player Tattoos

Last week, the government of Puerto Rico filed a petition for relief under the Puerto Rico Oversight, Management, and Economic Stability Act (PROMESA).  PROMESA gave Chief Justice John Roberts authority to select a U.S. district court judge to preside over the case, and last week he selected SDNY’s Judge Laura Taylor Swain.

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Yesterday, Judge Swain dismissed claims by Solid Oak Sketches, LLC alleging that Take-Two Interactive Software and other defendants infringed Solid Oak’s copyrights by prominently featuring eight tattoos of five NBA players (including LeBron James and Kobe Bryant) in Take-Two’s popular NBA 2K16 video game (see previous coverage here).

Judge Swain held that the plaintiffs could not recover under the Copyright Act because the first infringement occurred before the marks were registered: the tattoos were registered in 2015, and the alleged infringement first occurred when NBA 2k14 was released in 2013.  The parties also disputed whether the series of “2K” video games were a single work or separate works, and Judge Swain held that they were a single work:
Continue Reading Judge Swain Dismisses Infringement Claims Concerning Video Game Featuring LeBron and Kobe’s Tattoos

In a complaint filed yesterday, Solid Oak Sketches, LLC alleges that Take-Two Interactive Software and other defendants infringed Solid Oak’s copyrights by prominently featuring eight tattoos of five NBA players (including LeBron James and Kobe Bryant) in Take-Two’s popular NBA 2K16 video game.  Solid Oak Sketches entered into copyright license agreements with each of the artists that designed the tattoos.

The complaint alleges that tattoos “fit squarely” within the Copyright Act’s definitions of “pictorial, graphic, and sculptural works”:
Continue Reading Complaint Alleges Copyright Infringement for Video Game Featuring LeBron and Kobe’s Tattoos

In an opinion yesterday, Judge Swain dismissed artist Maya Hayuk’s claim that, after she rejected a request from Starbucks for her to create material for a new ad campaign, Starbucks simply copied the “core” of her art for the campaign anyway.  Below is one example of the actual campaign compared to the plaitniff’s art:

Starbucks ComparisonStarbucks Comparison2

More are here.

Continue Reading Judge Swain Rejects Artist’s Copyright Claim Against Starbucks Over Ad Campaign

In an opinion yesterday, Judge Swain ruled that “leave and mail” service under the CPLR was inconsistent with due process when used on a nonresident, at least where the case arises outside New York.  The petitioner had sought to confirm an arbitration award against an Indian citizen who lives abroad but who apparently rents an apartment in the Time Warner Center in Manhattan.  While the respondent was in town, the petitioner left a copy at the Time Warner Center and mailed a second copy.  Judge Swain found that the respondent would have to be personally served while here to satisfy due process:
Continue Reading Judge Swain: CPLR “Leave and Mail” Service Insufficient for Nonresidents Where Claims Arise Outside New York