A case of whether tattoos are entitled to de minimis and fair use copyright protection continues to move through the courts, with a New York federal judge allowing a tattoo artist’s lawsuit against a video game manufacturer to move forward.

Solid Oak Sketches owns the copyright registrations for five tattoos on the bodies of professional basketball players LeBron James, Kenyon Martin and Eric Bledsoe. The company filed suit accusing Take-Two Interactive Software of violating its rights by including the tattoos in the avatars of those players in its NBA 2K video games.

The defendant filed counterclaims seeking a declaratory judgment that its depictions of the disputed tattoos constituted both de minimis and fair use. But U.S. District Judge Laura Taylor Swain rejected the arguments.

In considering the de minimis argument, the court was stymied by the video game format when it tried to assess the amount of copying under either the qualitative or quantitative standards.

“[T]he visibility and prominence of the tattoos on screen are affected by countless possible game permutations that are dependent on individual players’ choices,” the court said. “A side-by-side visual comparison of the works in question here to determine whether the use of the copyrighted material was de minimis as a matter of law is a wholly different exercise than in prior decisions.”

While the defendant characterized the appearance of the tattoos as “observable only fleetingly,” “displayed only briefly,” and “a small part of the graphical display,” the plaintiff countered that an NBA 2K player can select one of the tattooed players and employ one of the game’s features “to focus, angle the camera on, or make the subject tattoos more prominent” and “the overall observability of the subject tattoos can be fairly significant.”

In denying the motion as to de minimis use, the court concluded that “at this stage of the proceedings, there is no objective perspective as to how the Defendants’ video game is generally played, or to what extent certain game features can be or are actually utilized, that would allow this Court to make determinations about the choices and subsequent observations of the ‘average lay observer,’ or about the observability and prominence of the Tattoos.”

Judge Swain faced a similar conundrum with regard to the issue of fair use. “Defendants’ claim of fair use of the Tattoos cannot be resolved at this stage of the proceedings,” the court wrote. “Because of the difficulties inherent in conducting a side-by-side comparison of the video game and the Tattoos, further evidence must be considered in connection with the fact-intensive question of the applicability of the fair use defense. As the differences between the Tattoos and Defendants’ use in the video cannot ‘be resolved with assurance on a visual comparison of the works alone,’ Defendants’ fair use of the Tattoos is not ‘so clearly established on the face of the [complaint] as to support dismissal.’”

To read the opinion and order in Solid Oak Sketches v. 2K Games, Inc., click here.

Why it matters: The court’s decision clearly sets forth the challenges the copyright holders faced when they apply existing precedent to video game avatars. Because of the games’ many features and options, it is difficult, at best, to determine whether substantial similarity exists between the tattoos and what the average lay observer views in each iteration of the game. As what is observable on screen is highly variable and depends on the choices of the individual user, the court denied judgment on the pleadings and moved the case forward.