In copyright infringement lawsuit involving depiction of basketball players’ tattoos in NBA 2K video games, district court grants defendants’ motion for summary judgment, holding that use of tattoos is de minimis, constitutes fair use and is subject to implied license from tattoo artists to use tattoos as part of players’ likenesses.
A tattoo licensing company, Solid Oak Sketches, LLC, brought a copyright infringement lawsuit against the developers, publishers and marketers of the video game NBA 2K based on their realistic depiction of five tattoos on NBA players Eric Bledsoe, LeBron James and Kenyon Martin. After denying an earlier motion by defendants 2K Games, Inc., and Take-Two Interactive Software, Inc., for judgment on the pleadings, the district court granted defendants’ motion for summary judgment in its entirety and dismissed the action on three grounds: de minimis use, implied license and fair use.
At issue were five distinct tattoos appearing in the NBA 2K basketball simulation video game: LeBron James’s “Child Portrait,” “330 and Flames,” and “Script with a Scroll, Clouds and Doves” tattoos; Kenyon Martin’s “Wizard” tattoo; and Eric Bledsoe’s “Basketball with Stars and Script” tattoo. Solid Oak, which acquired an exclusive license to each of the tattoos, claimed that defendant’s inclusion of the tattoos in the NBA 2K game to depict the physical likeness of the NBA players infringed its copyrights.
The district court first addressed the factors used to consider whether an allegedly infringing use is de minimis—the amount of the copyrighted work that is used, the observability of the copied work (the length of time the copied work is observable in the allegedly infringing work), and elements such as “focus, lighting, camera angles, and prominence.” The court agreed with Take Two that no reasonable observer could find that the tattoos in NBA 2K are substantially similar to the tattoo designs licensed to Solid Oak, as the tattoos at issue appeared on only three out of over 400 players in the game, and even when the subject players were shown, the tattoos were too small, indistinct and obstructed by game elements to be identified by the game’s users.
The court also held that, before Solid Oak acquired any rights from the tattoo artists, the artists had granted an implied license to the basketball players to use and display the tattoos as part of their personas, and that the players had, in turn, licensed the use of their likenesses to Take Two for use in the NBA 2K game. Take Two submitted affidavits from each of the tattoo artists responsible for the five works, all of whom attested to their intent to have their artwork become part of the players’ likenesses, as well as their knowledge that the players were likely to appear in public and other forms of media. Despite acknowledging that the Second Circuit has yet to rule on the precise circumstances necessary to find an implied nonexclusive license, the district court reasoned that one could be found in this case, as the tattoos were created at the players’ request for the purpose of being displayed as part of the players’ persona.
Finally, the district court granted Take Two’s counterclaim for a declaration that their use of the tattoos in NBA 2K constituted fair use. The court first recognized that defendants’ use was transformative, because the tattoos were used for the transformative purpose of creating a realistic depiction of the players’ likenesses, which weighed in favor of fair use. The court next held that the tattoos themselves were not highly expressive, as they were all copied from common tattoo motifs or from designs and pictures that they themselves did not create. Although Take Two included the full tattoos in its game, the tattoos that appeared in the game were substantially smaller than in real life, which also weighed in favor of fair use. Finally, the court found that there was no market for licensing of tattoos for use in video games, nor was one likely to develop. Indeed, the court noted that Solid Oak itself could not license the tattoos without a license from the players to exploit their likenesses. Because all four factors weighed in favor of fair use, the court granted defendants’ summary judgment motion on this ground as well.