Tattoo Copyright Holder Argues Video Game Depiction is Not Fair Use

On September 12, 2017, Solid Oak Sketches LLC opposed game maker Take-Two Interactive’s, motion for judgment in its favor in suit over video game NBA 2K’s depiction of players’ tattoos. Solid Oak purchased the copyrights from tattoo artists for several basketball stars. Solid Oak filed suit last year alleging the infringement of its copyrights for eight different designs that were etched on LeBron James, Kobe Bryant, and others. Along with the suit, Solid Oak offered to let Take-Two use the tattoos in the game for the year in exchange for $819,000, or perpetually for $1.14 million. In August, Take-Two requested the court to throw out the case, claiming that its use of the tattoos in the game was protected by the fair use doctrine or was too trivial to litigate. Take-Two also labeled Solid Oak’s suit as opportunistic.

In response to Take-Two’s attempt at dismissal, Solid Oak argued that Take-Two cannot argue that the tattoos would not be readily seen when it also flaunted the detail and depth of the game’s features, and how dynamic and customizable the game was. Solid Oak claimed that players could choose to use the players that have the tattoos and have those players on the screen for hours at a time depending on length of play and customization. Further, Solid Oak refuted Take-Two’s fair use claim, arguing that the game’s usage was not transformative. Solid Oak claimed the tattoos do not appear altered at all in the game and that the game replicates how the players appear in real life. In addition, Solid Oak disagreed with the argument that the sizes of the tattoos were reduced in the game. And the use of the tattoos is not de minimis because the customizable nature of the game could result in players seeing the tattoos frequently over hours at a time. Overall, Solid Oak called Take-Two’s argument “wildly disingenuous” because it was labeling the games as highly detailed but trivializing the depiction of the tattoos.

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