Show the Tattoo: Video Game Company Free to Depict Inked Basketball Stars

Four years ago, a company owning rights to tattoo art initiated a copyright infringement lawsuit in the U.S. District Court for the Southern District of New York asserting that the makers of the popular NBA 2K games infringed its rights by creating avatars of real-life basketball players complete with their tattoos.  Recently, after full discovery and extensive motion practice, the court granted the game company’s summary judgment motion dismissing the artist’s copyright infringement claim on grounds of de minimis use and implied license and granted the game company’s cross-motion for a declaration that the depiction of the tattoos in the game constituted fair use. This decision is important as it correctly looks at how tattoos have become a part of a person’s identity and authentic images cannot be created without leeway to realistically depict a person.Background: 2K Games’ NBA 2K series is an annual blockbuster that simulates professional basketball with lifelike depictions of teams, players, arenas, and the sights and sounds of a real NBA game.  The goal is a realistic and faithful rendering of the NBA experience.  One of the lifelike aspects of the game is the re-creation of players’ distinctive tattoos.  Plaintiff claimed that five tattoos for which it owns rights were depicted on NBA players Eric Bledsoe, LeBron James, and Kenyon Martin in the 2014-2016 versions of the game and that such public display violated the Copyright Act of 1976.  Solid Oak owns an exclusive license to the five tattoos but does not have permission to recreate them and does not have publicity or trademark rights in the NBA players’ likenesses.  On the other hand, the players provided the NBA with the right to license their likenesses to third parties, and the NBA granted such a license to defendants.The court described the tattoos and explained that, for each one, the tattoo artist “knew and intended that when” the NBA player receiving the tattoo “appeared in public, on television, in commercials, or in other forms of media, he would display” the tattoo; that the artist intended that the tattoos would “become a part of [the player’s] likeness”; and that the player “was and is free to use [the tattoo] as he desire[d], including allowing others to depict it, such as in advertisements and video games.”  The artists also admittedly knew that the men at issue were NBA players and would likely appear in the media, as well as in video games.Implied License: These admissions by the artists were critical to the court’s decision concerning implied license, a critical defense in the context of tattoo copyrights.  An implied license can be found “where one party created a work at the other’s request and handed it over intending that the other copy and distribute it.”  The court held that such was the case here, explaining that that tattooists admittedly granted the NBA players nonexclusive licenses to use the art as part of their likenesses, prior to granting any rights to Solid Oak, and in turn, the players (through the NBA) implicitly granted defendants the right to depict the tattoos as part of their likenesses.De Minimis Use: The court also spent significant time explaining its de minimis infringement ruling.  To prove copyright infringement, the plaintiff must prove that the amount copied was not “so trivial as to fall below the quantitative threshold of substantial similarity.”  To make this determination, the court analyzed the amount copied; the length of time the work can be seen; and other factors such as focus, lighting, and prominence, as seen through the eyes of an ordinary observer.  The court held that all three factors weighed definitively in favor of the game company and that “no reasonable trier of fact could find the Tattoos as they appear in NBA 2K to be substantially similar to the designs licensed to Solid Oak.”  The court characterized the tattoos as appearing as nothing more than “visual noise,” and found that, even in the rare event the tattoos were displayed, such display was “small and indistinct” and “cannot be identified or observed.”   Fair Use: Finally, the court engaged in a detailed fair use analysis examining all the statutory factors finding that all four factors weighed in defendants’ favor. What was interesting was the analysis of the second factor, the “nature of the work” that looks primarily at whether a work infringed is more creative or factual. Although this factor is generally neutral, the more factual a work, the more likely fair use is favored. In this instance, the court noted that the tattoo designs themselves were more factual than expressive “because they are each based on another factual work or comprise representational renderings of common objects and motifs that are frequently found in tattoos.”  Downplaying the creative and expressive nature of each of the tattoos based on the circumstances behind their creation, the court observed that the tattooists had admitted that each work “copied common tattoo motifs or were copied from designs and pictures [the artists] themselves did not create.”Takeaway: While a federal district court decision is not binding on other courts, this decision is well-reasoned and is a likely model courts to follow if similar cases are brought by tattoo artists for representations of individuals with tattoos. This case should ease the concerns of those who want to use images of real people in the media but are concerned with the risks of a claim by the tattoo artist. As tattoos are increasingly common, it is not reasonable to restrict the use of images of people with common tattoos. This case did not involve unique, one-of-a-kind tattoos, but the theory of implied license could still apply as no tattoo artist could expect that a tattoo placed on a visible part of the body would not be photographed or filmed in this “Instagram” world.