Copyright in Video Game Claim Continues….

Back in April we reported on the saga surrounding copyright in tattoos on computer games, the article can be read here.

The article focused on the proceedings that were brought in the US District Court for the Southern District of New York, between Solid Oak Sketches and the makers and publishers of NBA 2K16, the basketball simulation video game. Solid Oak Sketches is the exclusive licensee of the tattoo work on various high-profile NBA stars having acquired the rights from the respective tattoo artists; when it discovered that the tattoos were being reproduced on NBA 2K16 characters, it issued proceedings.

The makers and publishers of NBA 2K16 filed a motion for judgment arguing that the tattoos fell under the 'fair use' exception; they also argued that the tattoos are incidental to the overall impression given by the players. This argument was, however, rejected by U.S District Court Judge Laura Taylor Swain who felt a jury, and herself, ought to be provided with more facts and observations to help them reach a decision.

The litigator for the Defendants will now be putting new arguments forward to the judge as to why there has been no infringement but rather 'fair use'; their brief comments include how ridiculous it would be for players to have to keep in touch with their tattoo artists so that they could seek permission each time their likeness is used to avoid a copyright infringement claim.

It has also been reported that a tattooist who was approached by Solid Oak Sketches is unhappy with the claims it is making, expressing that it is inconsistent with how he feels his work should be used. In addition to this, there are also arguments as to why a win for Solid Oak Sketches would damage the tattoo industry as people would feel put off from getting a tattoo in future.

Lebron James gave a declaration in the ongoing dispute saying that no tattooist has ever suggested he would have to seek their permission before he licenses his likeness, even though they are aware of his public status.

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.