Hoops, Tattoos, As Well As Video Games

Football flavor ended inwards the U.S.A. lastly Lord's Day alongside the Super Bowl (Denver won), as well as baseball game flavor (alas!) has non started yet. Basketball flavor is inwards total flower (go Knicks!), exactly volition terminate inwards the Spring.

But basketball game fans may assuage their end-of-season blues yesteryear playing basketball game video games all twelvemonth long. These games features digital versions of the electrical flow players, as well as hence are regularly updated. Last fall, video game fellowship 2K Games, Inc. (2K) released the 2016 version of its annual basketball game video game, NBA 2K16. Four i grand m copies were sold its kickoff calendar week on the market.

The game reproduces the likeness of basketball game players. Some of them, LeBron James, Kobe Bryant, Eric Bledsoe, DeAndre Jordan, as well as Kenyon Martin sport tattoos inwards existent life, as well as their digital representation sport the same tattoos inwards the NBA 2K16 game, every bit they already did inwards the NBA 2K14 as well as the NBA 2K15 games.

The blueprint of these tattoos had been created yesteryear several artists who after signed licensing agreements alongside Solid Oaks Sketches, LLC. (Solid Oaks). Following the unloosen of the NBA 2K14 as well as NB 2K15, Solid Oaks engaged inwards a negotiation alongside 2K inwards July 2015, inwards anticipation of the September unloosen of NBA 2K16, every bit it believes that, yesteryear reproducing the tattoos inwards its video games, 2K infringed Solid Oaks ’copyright.  

The negotiation roughshod through and, on Feb 1, 2016, Solid Oaks filed a copyright infringement adjust inwards the Southern District of New York (SDNY) against 2K, game publisher Take Two, as well as game developer Visual. The illustration is Solid Oaks Sketches, LLC. V. Visual Concept, LLC as well as 2K Games, Inc., as well as Take Two Interactive Software, Inc., 1:16-cv-00724.

Are Tattoos Protected yesteryear Copyright?

The designs at stake are all registered alongside the Copyright Office, every bit tattoo artworks. What nearly the existent tattoos?

Plaintiff argues that tattoos are protected yesteryear copyright, every bit they are “pictorial, graphic, as well as sculptural works” nether 17 U.S.C. §102(a) (5). Plaintiff also argues that tattoos are fixed inwards a tangible medium of expression, noting that “the tattoos designs are imprinted permanently upon the pare of humans, clearly stable as well as able to live perceived for much to a greater extent than than a transitory duration” (at 28). Tattoos also satisfy the “minimal grade of creativity” requirement laid yesteryear the Supreme Court inwards Feist Publications, Inc. v.  Rural Tel. Serv. Co.

Plaintiff cites an article yesteryear Yolanda M. King, The Challenges Facing Copyright Protection for Tattoos to back upwards its claim exactly notes, however, that “[t]he number of tattoo copyrightability has yet to live decided upon inwards courtroom due to numerous settlements preventing a lastly judicial opinion.”

It seems that tattoos may live  protected yesteryear copyright. Is in that location a defence forcefulness available to the Defendants?

Possible Defenses: Fair Use as well as De Minimis

Fair exercise is a defence forcefulness to a copyright infringement claim, as well as the SDNY would await at the four fair exercise factors, (1) role as well as grapheme of the use, (2) nature of the copyrighted work, (3) total as well as substantiality of the percentage used inwards relation to the copyrighted operate every bit a whole as well as (4) final result of the exercise upon the potential marketplace for or value of the copyrighted operate to detect whether the exercise of the tattoos was fair.

Defendants inwards this illustration could sure enough claim that the total taken inwards relation to the video game was small-scale plenty to live fair. They could fifty-fifty claim that the exercise of master operate was as well as then picayune that it does non fifty-fifty warrant a review yesteryear the court, every bit de minimis non curat praetor, the courtroom does non work concern itself alongside trifles.

However, plaintiff took attention to Federal Reserve annotation inwards the electrical load that “On social media, 2K has promoted the improved tattoo customization every bit a major characteristic inwards the game” (at 15) as well as that “Game reviewers praised NBA 2K16’s improved visuals, which included smoother looking grapheme models as well as to a greater extent than individualized tattoos” (at 16), as well as and then belike stands ready to struggle that the exercise was significant, both quantitatively as well as qualitatively.

A Possible Defense: Terms of Players’ Contracts alongside Their Tattoo Artists

Did the players themselves create got a licensing contract alongside the tattoo artists who applied the designs at stake on their bodies?

Indeed, sports agents should live good advised to explicate to their clients that sporting i or to a greater extent than tattoos may impede their mightiness to monetize their image. While his tattoos brand LeBron James an fifty-fifty to a greater extent than interesting player, having a courtroom detect out that their reproduction infringes the correct of a 3rd political party would rather complicate the drafting of a (lucrative) understanding to license his image.

Should players live advised to secure the exclusive correct of their tattoos earlier going nether the inky needles? An writer has argued for the demand of an implied license.

It has been reported inwards 2013 that the National Football Association Players Association advised agents to recommend that their clients secure a unloosen from the tattoo artist, as well as fifty-fifty to rail downward the artists who create got done their previous tattoos to secure such unloosen every bit well. This advice was given next the Whitmill vs. Warner Bros. Entertainment Inc., 11-cv-00752 (E.D. Mo.) case, where the tattoo creative somebody who had created the highly master tattoo sported yesteryear Mike Tyson filed a copyright infringement adjust to foreclose the unloosen of The Hangover 2, where histrion Ed Helms sports a similar tattoo.

The National Basketball Players Association volition belike number similar advice next the 2K Games copyright infringement complaint, if it has non done it already. Meanwhile, many IP attorneys are hoping the 2K16 illustration volition non settle, as well as then that the SDNY volition create got an chance to dominion on whether tattoos inwards general, as well as tattoos reproduced inwards video games inwards particular, are indeed protected yesteryear copyright. It should non live a slam dunk illustration (sorry).

Photo is courtesy of Flickr user Chili Head nether a CC BY 2.0 license.