Somehow, it’s been nearly four years since a tattoo company, Solid Oak Sketches, decided to sue 2K Sports, the studio behind the renowned NBA 2K franchise, claiming that the game’s faithful representation of several stars’ tattoos was copyright infringement. The company claimed to own the copyright on the design of several players’ tattoos, including most famously LeBron James, Kobe Bryant, and DeAndre Jordan. The claim in the suit was that 2K’s faithful depiction of the players, whom had collectively licensed their likenesses via the NBAPA, somehow violated Solid Oak’s IP rights.
Put another way, it could be said that by branding the player with Solid Oak’s designs, the company seems to think it can control the players’ ability to profit off of their own likenesses. That this draws the mind to very uncomfortable historical parallels apparently was of no issue to Solid Oak.
Well, while 2K Sports failed to get the court to dismiss the case back in 2018, it has more recently won the case on summary judgement, with the court quite helpfully getting everything right and declaring the depiction of tattoos in video games in this manner to be Fair Use.
The defendants have sought to dismiss the plaintiff’s complaint because “Plaintiff cannot prove its claim because Defendants’ use of the Tattoos is de minimis and Plaintiff is this unable to prove the key substantial similarity element of its cause of action.” They state their use of the tattoos and images “was pursuant to implied authorization granted prior to Plaintiff’s acquisition of any rights in the Tattoos.”
The court has granted the summary judgment dismissing the infringement claim because “no reasonable trier of fact could find the Tattoos as they appear in NBA 2K to be substantially similar to the Tattoo designs licensed to Solid Oak.” Additionally, the tattoos “only appear on the players upon whom they are inked, which is just three out of over 400 players.” Therefore, the odds are against one of those Players with their tattoos being selected. Additionally, because Defendants had a license for the game, they had implied license for the tattoos as part of the players’ likeness and the Players allowed Defendants to use their likeness.
The full filing, embedded below, goes into far more detail. And, frankly, it’s quite nice to see a court get this so right. It’s clear the court in this case took care and time to go through the material brought by both parties and carefully weigh the claims against Fair Use. Given such careful examination, the conclusions were fairly obvious. In addition to the rationale above, the court notes that the tattoo artists in this case, despite claiming copyright infringement for the de minimis reproduction of tattoos in the game, couldn’t even reproduce them themselves given the likeness rights of the players.
Solid Oak has neither licensed the Tattoo designs nor sold merchandise depicting the Tattoos. (Def. 56.1 ¶¶ 107-08.) Solid Oak’s owner, Matthew Siegler, testified that he would “need permission from the players . . . to not infringe on their right of publicity,” in order to move forward with a business selling “dry wick apparel” bearing the Players’ tattoos. (Cendali Decl., Ex. A at 389.) Solid Oak does not have a license to use the Players’ publicity or trademark rights. (Def 56.1 ¶ 102.) Solid Oak has not proffered any evidence indicating that it has a prospect of obtaining such rights.
And so ends one of the most annoying video game IP lawsuits of all time. The shame of it, really, is that it took the system four years to reach the only logical conclusion: someone getting a tattoo doesn’t somehow destroy their ability to profit off of their own likeness.