Video games, basketball, tattoos and copyright lawsuits

LEGAL ENTERTAINMENT

Earlier this year, a judge in New York denied a motion for judgment on the pleadings asking the court to find that the defendants' use of an NBA player's tattoos in a video game is either a non-infringing de minimis use or non-infringing fair use. Solid Oak Sketches, LLC v. 2K Games, Inc. and Take-Two Interactive Software, Inc., 16-CV-724-LTS-SDA (March 30, 2018) [ruling attached below].

The defendants, 2K Games and Take-Two Interactive Software, make the "NBA2K" video game series, which releases a new version each year to reflect the current basketball teams and players. The plaintiff, Solid Oak Sketches, owns five copyright registrations for tattoos on five famous basketball players, including Lebron James and Kenyon Martin. Solid Oak looks to be compensated for the use of the tattoos.

The case will be important for video game developers. If the judge had decided the issues at such an early state, future lawsuits could be decided on the same analysis, leaving tattoo artists without recourse. But since copyright cases often require a fact-heavy analysis, the judge found that the issues could not be decided without the aid of expert testimony and extrinsic evidence.

The first issue discussed was whether the use was de minimis, meaning it's so trivial that the law does not impose legal consequences. The court said "it's not possible to apply the qualitatively-focused 'average lay person' standard or to apply the quantitative determination of the observability of Solid Oaks' copyrighted tattoos" at this stage. The video game has too many variables to look to without help of additional evidence. The gameplay involves countless game permutations, so court found it impossible to determine what the "average lay person" sees or notices.

The de minimis analysis in cases involving TV or films that depict copyrighted works is different than video games. In those cases, viewers do not have any control over when and how long a copyright work is displayed in the TV show or film; there is a durational consensus between the parties because the amount of time displayed and how it was visually perceived is easily quantifiable. For example, in Ringgold v. Black Entm't Television, Inc., 126 F.3d 70 (2d Cir. 1997), a copyright-protected poster was visible for 1.86 to 4.16 seconds at a time for a total of 26.75 seconds. When it comes to video games, the player has control over how long something is displayed. If the player wanted to, they would be able to display Lebron James with his tattoo each time they played the video game, for however long they would like to play. Or, a player could decide to never use Lebron James and thus only see the tattoo when the computer decides to use that player.

The second issue, fair use, involves a more complex analysis, since the copyright statute requires a fact-intensive, four-factor test. The judge said the issue could not be resolved at this stage for the same reasons as discussed under the issue of de minimis; further evidence is required in such a fact-intensive analysis.

The parties are now working through discovery, which may be the furthest any one of these tattoo lawsuits has progressed without settling the case. Reading over the arguments and looking at the amount of time each party is investing in the case, it may go all the way. A decision would provide a much-needed precedent.

More lawsuits are already starting to pop up in light of this case. The same defendants are fighting a similar lawsuit filed last December by tattoo artist James Hayden. An interesting difference between the cases is that the newest version of NBA2K includes additional features that pertain to how the tattoos are used and viewed. The 2017 version of the game allows the game player to add tattoos and "customize" the player. It will be interesting to see how the judge in the Hayden case will analyze the additional feature.

These cases continue to be important ones for copyright lawyers to track.