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

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