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:

Plaintiff further argues that the updates to 2K16 distinguish it as a work that is separate from the game’s previous iterations. However, when the same defendant infringes on the same protected work in the same manner as it did prior to the work’s registration, the post-registration infringement constitutes the continuation of a series of ongoing infringements. Here, the same Defendants have allegedly been infringing the same tattoo designs owned by Plaintiff. The pre- and post-registration versions of the 2K series are the same basketball simulation video game; the only material differences are updates to the title and visual and graphical improvements. The allegations of the Complaint plausibly support such a conclusion, asserting that Defendants have been “engaging in ongoing acts of copyright infringement” and that “NBA 2K16 would include additional infringement of the copyrights.”