Solid Oak acquired the reproduction rights to a number of NBA athletes’ tattoos from various artists in 2015, some of which appear in Take-Two’s realistic depictions of NBA players in its video games.
Judge Laura Swain of the US District Court for the Southern District of New York said earlier this month that Take-Two could not be held liable for statutory damages, which could have reached billions of dollars.
Solid Oak is still entitled to pursue actual damages over Take-Two’s alleged unauthorised use of the eight tattoo designs In NBA 2K16.
Take-Two filed a motion for judgement on the pleadings on 9 August, arguing that its incorporation of the tattoos falls under “fair use”.
In its motion, the video game company said that Solid Oak’s argument would force these NBA players to “seek its permission every time they appear in public, film, or photographs and that those that create new works depicting the players as they actually appear (with their tattoos) should be enjoined and pay damages to Solid Oak”.
“Yet, no case has interpreted copyright law as providing such a right, and doing so here would inhibit copyright’s purpose of encouraging the creation of new works. This is particularly troubling at a time when tattoos are becoming increasingly popular.”
It added: “Solid Oak’s profit-making litigation should be halted in its tracks by dismissing Solid Oak’s copyright claim as a matter of law under the de minimis use and fair use doctrines.”
Take-Two’s de minimis argument is that the tattoos are only displayed when the specific players are selected from a roster of more than 400 NBA athletes.
“Even when the tattoos appear, they are not prominent as the game camera generally uses a full court shot with the players’ avatars appearing as small images, and the tattoos thus appearing even smaller than they would in real life,” the motion said. “This makes the tattoos difficult (if not impossible) to see even when the players appear in the game.”
Take-Two is no stranger to disputes over character depictions in its video games.
Actress Lindsay Lohan sued Take-Two for a violation of privacy by using her likeness in its Grand Theft Auto V video game.
Last year, a New York appeals court dismissed Lohan’s claims and stated that the video game was a work of fiction and satire.