Take-Two Fails To Get NBA2K Tattoo Copyright Lawsuit Dismissed

from the written-in-ink dept

I'll forgive you since it's been two years, but hopefully you will remember our posts about a crazy copyright lawsuit back in early 2016 between a company called Solid Oak Sketches and Take-Two Software. At issue were Take-Two's faithful depictions of several NBA stars in its NBA 2K series of games, including LeBron James and Kobe Bryant. The problem is that Solid Oak claims to have copyrights on several tattoos appearing on the skin of these players, all of which show up in the images of the game. Of course, Take-Two negotiates the rights for player likenesses with the NBA Players Association, meaning this lawsuit has the odd smell of a third party bickering over branded cattle. While Solid Oak is asking for $1.2 million in damages, Take-Two has pointed out that these sorts of statutory damages shouldn't apply as the company only registered its copyrights in 2015. This fact leads a reasonable observer to wonder why the copyrights weren't registered much earlier, were Take-Two's use so injurious.

That question is of course tangent to the most central concern of why in the world any of this isn't obvious fair use? Take-Two has First Amendment rights, after all, and its use of the eight tattoos in each iteration of the game is a hilariously small portion of each work. On top of that, the whole enterprise of the game is to faithfully depict reality with regards to each player whose likeness it has properly licensed through the NBAPA. None of this should strike anybody as a million dollars worth of copyright infringement.

And, yet, a court recently refused to grant Take-Two's petition to dismiss the case, allowing this mess to proceed.

"While Defendants contend that the Tattoos in NBA2K are 'observable only fleetingly'; 'displayed only briefly'; 'a small part of the graphical display' when displayed; 'sometimes obscured by other graphics'; 'not displayed prominently'; and 'sometimes displayed out of focus,' Plaintiff denies each and every one of these characterizations of the Tattoos. Instead, Plaintiff contends that, if an NBA2K player selects Messrs. James, Martin and Bledsoe in a given game or series of games, or 'employs the broad range of the video game’s features to focus, angle the camera on, or make the subject tattoos more prominent,' 'the overall observability of the subject tattoos can be fairly significant.' Thus, it is difficult to determine whether the substantial similarity is apparent to the 'average lay observer,' if what he or she is observing varies in each iteration of the game."

I own several of these games and can attest that the observability of any tattoos on any player within them are fleeting at best. The whole point of the game is to be an action-packed basketball experience from a viewpoint of most of, or the entire, basketball court. Picking out individual tattoos is rarely possible other than in manual instant replay. And, sure, some players might use that replay feature, but not regularly and not as part of regular play. This smacks of a judge that needs only to be sat in front of a television or computer screen to see the game in operation in order to have reached the proper and opposite conclusion.

But Take-Two also made a First Amendment claim, arguing, as I did above, that granting tattoo artists the rights Solid Oak is claiming would be to allow tattoo artists to trump the likeness rights of a natural person. If that doesn't strike you as plainly insane, it should. Yet the judge apparently considered all of this a question of visual accuracy and therefore denied the fair use defense.

"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 [SAC] as to support dismissal."

To be fair to the judge, often times the court is wary of dismissing early on in the trial process over fair use defenses that aren't on very, very solid ground. That may be what is going on here. But if it is, this seems to be chiefly an issue of calibration, because Take-Two's fair use claims are very strong, and the implications of Solid Oak succeeding in its lawsuit are both not in the original interests of copyright law and plainly horrifying when it comes to public persons and their ability to trade off of their own likenesses.

Hopefully a jury will be more grounded than the court.

Filed Under: basketball, copyright, fair use, kobe bryant, lebron james, tattoos, video games
Companies: solid oak sketches, take two software

Take-Two Says Tattoo Artist Can't Get Statutory Damages Because He Only Registered Copyright In 2015

from the hmmm dept

Back when I first wrote about the copyright lawsuit between a tattoo artist and Take-Two Software, makers of the highly successful NBA2K basketball series, over the faithful depiction of LeBron James' image including his ink, I had been hopeful that perhaps this case could be a step towards resolving whether fair use applies when presenting images of people with tattoos in creative works. And that might still happen, but the defense Take-Two has decided to start things off with won't do the trick. Rather than asserting the work's status as fair use, the video game maker has led with a challenge to whether the tattoo artist can claim statutory damages based on when he had registered the copyright for the tattoos in question. It's a play on a technicality, one which seems to strangely play on what counts as an independent work.

Solid Oak Sketches had sued for damages nearing $1.2 million, claiming eight works had been infringed upon in the game NBA 2K16, including tattoo designs for LeBron James and two other players. According to Take-Two's most recent filing with the court, Solid Oak Sketches registered the copyright for those tattoos in 2015. The game company's argument is that it has been depicting those players and their tattoos since 2013, therefore there is precedent that statutory damages are not in play.

These claims for damages, however, are precluded by 17 U.S.C. §412. As is clear form the face of the Amended Complaint and its attachments, Take-Two has depicted Mr. James, Mr. Martin, and Mr. Bledsoe -- and their tattoos -- in its NBA videogames since at least 2013. This is years prior to the registration of the tattoos with the U.S. Copyright Office in June and July 2015... Here, where the same work has allegedly been infringed by the same defendant in the same manner since 2013 -- long before registration -- binding Second Circuit precedent dictates that statutory damages and attorneys' fees are unavailable.

In other words, because the complaint is over infringement that is essentially the same as has been occurring two years prior to the registration, precedent indicates that statutory damages and attorneys' fees should not apply. It's an interesting argument, though I wonder if it isn't without its pitfalls. Does Take-Two mean to suggest that in some way each years' NBA 2K game is not a separate work and publication. I am sure that is not what they are trying to argue, but arguing that the depiction of individual players within the game are essentially the same depiction for the purposes of combating this action leads us down that path.

Regardless, it does certainly seem to demonstrate that whatever harm Solid Oak Sketches wants to claim in their suit seems silly. Were it so injurious, it brings the question as to why it didn't act to protect itself in all the years previous in which similar alleged infringement is supposed to have occurred. Did it suddenly only become a problem in 2016?

The filing also makes it clear that Take-Two plans to also attack the underlying nature of the infringement claim in the future, which likely means it will assert a fair use argument. I hope it does. That would be the more important precedent to set here.

Filed Under: basketball, copyright, lebron james, registration, tattoos
Companies: solid oak sketches, take two software