Copyright in tattoos… on a computer game?

Solid Oak Sketches ("SOS") acquired an exclusive license covering tattoo art on various (high profile) NBA stars from their respective tattoo artists. In 2016 it began proceedings against the makers (Take Two Interactive Software ("Take-Two")) and publishers (2K Games Inc. ("2K")) of NBA 2K16, a hit basketball game sold across all modern gaming platforms. The proceedings were brought in the US District Court for the Southern District of New York.

Take-Two and 2K accused SOS of opportunism, and in August 2016 filed a motion for judgment (much like an application for summary judgment in England and Wales). They argued that the use of the tattoos fell under the 'fair use' exemption.

In the USA 'fair use' allows for unauthorised but limited and non-commercial use of copyrighted material. That was the basis of the game-makers' application: that the game only displays the tattoos fleetingly to capture a true likeness of the players and the use of those tattoos was incidental to the overall impression given of the players.

SOS on the other hand argued that the tattoos were a "main design on the NBA players on which they are attached". It also argued that the use was "clearly commercial".

On Friday 30 March 2018 District Judge Laura Swain dismissed the motion for judgment, explaining that she needed a better understanding of how the game is played, before adjudicating on whether the tattoos meet the "sufficiency threshold" for fair use.

The judge explained that no objective perspective could be reached at this stage of proceedings. It seems, therefore, as though she has erred on the side of caution, by allowing the litigation to proceed for now.

We will be keeping an eye out for any developments in this story, as it may have far-reaching consequences for a gaming industry already having to navigate hundreds (if not thousands) of rights holders in order to release realistic sporting games.

If you have any questions on the above, please do not hesitate to contact the team at McDaniel & Co. on 0191 281 4000 or legal@mcdanielslaw.com.