On Friday, May 27, 2016, video game companies 2K Games Inc. and Take-Two Interactive Software Inc., the makers of the popular basketball video game series “NBA2K” and its yearly releases, filed a reply memorandum of law in support of its motion to dismiss an ongoing suit in the Southern District of New York against tattoo licensing company Solid Oak Sketches. The filing comes in response to Solid Oak’s brief in opposition filed earlier in May, in which it claimed that it was entitled to statutory damages and attorneys’ fees over 2K and Take-Two’s depictions of certain tattoos on NBAers Lebron James, Kenyon Martin, and Eric Bledsoe in their latest game. Specifically, Solid Oak argued that it is owed $450,000 for the inclusion of the players’ tattoos, which it claims were legally registered with the U.S. Copyright Office prior to the release of NBA2K16 in September of last year.
2K and Take-Two’s response argues that Solid Oak is not entitled to those fees because the inclusion of the designs, even if they do infringe on the licenser’s copyrights, happened before Solid Oak secured IP protection over the tattoos. They say that NBA2K16 is not a new work of art, but rather the most recent version of the ongoing basketball game series.
As the response memo points out, the tattoos were featured in both the releases of NBA2K14 and NBA2K15 (which were made available to the public in September 2013 and September 2014, respectively); 2K and Take-Two, in developing the games, included the tattoos to further show off the realism that modern-day video games can achieve, especially concerning characters based on real individuals. For reference, Solid Oak did not secure copyright licenses on the tattoos until June 2015, nearly two years after the specific inks were included in the games for the first time. Thus, the argument now falls on whether or not the judge holds that a yearly iteration of an ongoing video game series constitutes a new work of art – a truly marvel, and practical, concept for intellectual property litigation moving forward.
The companies also argued that their willfulness in including the designs and thereby violating Solid Oak’s established copyrights has no bearing under Second Circuit precedent, because they were including the tattoos before they were ever registered. Solid Oak, on the other hand, believes that the makers intentionally violated their copyrights because they had sent the companies cease-and-desist letters prior to the release of NBA2K16.
Outside of statutory damages and attorneys’ fees, Solid Oak also seeks a declaratory judgment prohibiting the game designers from including the tattoos in future releases.