Tattoos and Copyright: Federal Court Deems Reproductions of Athletes’ Tattoos in “NBA 2K” Franchise Fair Use
On March 26, 2020, Judge Laura Taylor Swain from the Southern District of New York dismissed a copyright infringement claim filed against Take-Two Interactive Software, creators of the popular NBA 2K video game series.[1] Solid Oak Sketches brought suit in 2016, claiming that Take-Two’s depictions of tattoos inked to star basketball players LeBron James, Kenyon Martin, and Eric Bledsoe amounted to unauthorized reproductions.[2]
Judge Swain determined that Take-Two’s use of the copyrighted tattoos is de minimis, meaning that the copying of protected material is so trivial that it falls below the quantitative threshold of substantial similarity.[3] Merely three out of over four hundred players bore copyrighted tattoos, the in-game reproductions are only 4.4% to 10.96% the size of the tattoos’ real-life appearance, and importantly, a reasonable observer would be unable to discern a tattoo given the quick, erratic movements of players during gameplay.[4]
Take-Two also prevailed on its fair use counterclaim.[5] The Southern District found Take-Two’s use of copyrighted tattoos to be transformative as they had originally been created as a means of player expression through body art; alternatively, NBA 2K game developers used the tattoos to amplify the realism of basketball players in a virtual NBA game.[6] Further, with the digitized tattoos comprising between 0.000286% to 0.000431% of total game data, the tattoos constituted an inconsequential portion of the game itself.[7].
The Southern District’s ruling clarifies a longstanding uncertainty in intellectual property law when it comes to the protection afforded to tattoos. Previously, two important cases had been settled out of court touching on this issue: first, a 2005 lawsuit in which a tattoo artist sued NBA star Rasheed Wallace for depicting his tattoo in a Nike commercial;[8]and second, the notable 2011 lawsuit between tattoo artist S. Victor Whitmill and Warner Bros. for replicating Whitmill’s famous “Mike Tyson Tribal Tattoo” on Ed Helms’ face in The Hangover Part II.[9]
Judge Swain determined that the tattoo artists necessarily granted the NBA players nonexclusive implied licenses to uses the tattoos as part of their likenesses, as each artist knew that the athletes were likely to appear in public, on television, or in other forms of media.[10] NBA 2K’s right to use the tattoos derived from these implied licenses (as the players had given the NBA the right to license their likenesses to third-parties, like NBA 2K, as part of the league’s collective bargaining agreement).[11]
The ruling signals a win for game developers who aim to create video games as realistically as possible without the fear of unending copyright litigation.[12] This sentiment is echoed by LeBron James himself, who in a declaration for support of Take-Two and 2K announced, “My tattoos are part of my persona and identity. If I am not shown with my tattoos, it wouldn’t really be a depiction of me.”[13]
Among the losers are the tattoo artists themselves. Interestingly, Shawn Rome and Julian Wright, two of the three artists named in the suit, had no knowledge Solid Oaks Sketches intended to sue Take-Two prior to the 2016 court filing.[14] The artists believed Solid Oaks planned to incorporate their tattoo designs into a clothing line.[15] New York University law professor Christopher Jon Sprigman calls this type of behavior a “shakedown and copyright trolling.”[16]
In an industry built around word-of-mouth referrals and social influence, the tattoo artists named in this suit could experience a decline in business. At the very least, managers and agents will be sure to arm their athlete clients with waivers extinguishing an artist’s rights during the athlete’s next trip to the tattoo parlor.
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