Tattoo Copyright Infringement Adapt Dribbles On

Readers of this weblog may remember that Solid Oaks Sketches filed a copyright infringement adjust against Take-2 Software, the maker of the NBA 2K video game, claiming that its reproduction of several tattoos worn past times famous basketball game players was copyright infringement. The example is yet ongoing inward the Southern District of New York, together with defendants filed this calendar month a motion for judgment on the pleadings, where they scrap that the exercise was fair use. HT to the Hollywood Reporter.

Solid Oaks bought the copyright for the tattoos of Eric Bledsoe, Lebron James, together with Kenyon Martin, which were created past times several tattoo artists. These players appear inward the NBA 2K game, consummate alongside their tattoos. Solid Oaks claims this is copyright infringement. Take-2 argues that the exercise is de minimis together with fair use.

A real-life depiction

The tattoos “only appear on the players on which they were inked inward existent life, non other real-world players or fictional characters” (p. 13). Indeed, the NBA 2K game, which is updated every year, depicts over 400 electrical current together with retired NBA players “realistically. …These depictions receive got realistic facial together with physical features… They vesture jerseys together with sportswear alongside the numbers, colors together with logos of their teams. The game fifty-fifty depicts NBA-branded socks” (p.9).

The tattoos at stake were each created specifically for the players. As explained inward the motion, “[e]ach tattoo was created equally a custom tattoo intended alone for the musician on which it was inked… Thus, they are imbued alongside special important for the players. For instance, Solid Oak admits that “Child Portrait Tattoo Artwork” depicts LeBron James’s son… Similarly, “330 together with Flames Tattoo Artwork” depicts the expose 330, which is the surface area code for Mr. James’s hometown” (p. 12).

Defendant argues that Plaintiffs “seek to hinder the mightiness to pull people equally they appear inward existent life” (p.6), together with that Plaintiff is contending that these famous basketball game players must straight off assay its permission each fourth dimension they appear inward public, inward films, or when existence photographed.

Use is de minimis

Defendant is contestation that the exercise of the protected operate is de minimis. “[T}rivial copying does non establish actionable infringement” Newton v. Diamond, 388 F.3d 1189, 1193.

There are 400 players available inward the video game, together with and then the tattoos alone appear when the iii players featuring the tattoos which copyright is owned past times plaintiff appear inward the game. Also, the tattoos appear real small-scale inward the game together with thence are real hard to see. For Defendant’s the tattoos “are precisely ane of the myriad of elements that makeup NBA 2K” (p.13).

Use is fair exercise

Defendant is also contestation that it “is not a contender tattooist that has replicated a creative blueprint together with inked it on a novel person. Rather, its exercise is completely dissimilar inward a massive, highly creative video game featuring a virtual basis that alone uses musician tattoos to realistically capture how the players truly look. Each of the factors that courts consider supports a finding of fair use.”

Defendant reviewed each of the 4 fair exercise factors together with argued that each of the factors is inward its favor.

The commencement factor, the role together with grapheme of the use, is inward Take-Two’s favor because it “uses the Tattoos for a dissimilar role than that for which they were originally created. While the Tattoos originally were created equally the NBA players’ self-expression, Take-Two uses them only to replicate how the players appear inward existent life.”

The minute factor, the nature of the copyrighted work, should also last inward Defendant’s favor because “Take-Two uses them to pull the basis accurately.”

The 3rd factor, the amount together with substantiality of the part used, should last inward Defendant’s favor because the “use was reasonable given that its role was to pull existent life accurately, together with using whatever less of the Tattoos would defeat that purpose.”

The 4th fair exercise factor, the final result of the exercise upon the potential market, should last inward Defendant’s favor because Plaintiff “admitted that it is contractually prohibited from inking the Tattoos on other people, important that Take-Two’s exercise cannot impairment that market.”

What almost correct of publicity?

This is a copyright infringement adjust together with the players are non parties inward the suit. However, ane could imagine that they could file a adjust against the possessor of the copyright of their tattoos for tortious interference inward contractual relations, if non owning the copyright of their tattoos would forestall them from licensing their likeness. On the other hand, ane tin scrap that the possessor of the copyright has the correct to last financially compensated if the operate is reproduced, peculiarly for inward a commercial venture.

These players are celebrities, but our likeness is to a greater extent than together with to a greater extent than used for marketing purposes. Influenza A virus subtype H5N1 few grand followers on social media may province us all a lucrative marketing deal. If nosotros sports tattoos but exercise non ain their copyright, should nosotros secure a license earlier posting selfies? As Jack London in ane lawsuit said [on Twitter]: Show me a human alongside a tattoo together with I'll demo you lot a human alongside an interesting copyright license.