New York
14 September 2017
Reporter: Barney Dixon

NBA tattoos not fair use, says Solid Oak Sketches

Take-Two’s use of NBA players’ tattoos in its NBA 2K video games is not fair use and a purely commercial play to “enthrall consumers to the realism of the games”, according to a new filing from Solid Oak Sketches.

Solid Oak Sketches acquired reproduction rights to a number of NBA athletes’ tattoos, which appear in the NBA 2K video games.

Last month, Take-Two won a dismissal of statutory damages in the case, with Judge Laura Swain of the US District Court of the Southern District of New York ruling that Take-Two could not be held liable for statutory damages, which could have reached billions of dollars.

Solid Oak Sketches is still entitled to pursue actual damages.

In a filing with the US District Court for the Southern District of New York earlier this week (12 September), Solid Oak Sketches argued against Take-Two’s de minimus argument, entering that there are “too many potential permutations on the usage of the NBA 2K game and its players to state with any degree of legal certainty that the offending use was, or was not, de minimis in nature”.

Take-Two had claimed, in a motion for a dismissal, that the tattoos are only displayed when specific players are selected from a roster of more than 400 NBA athletes, and that even when the tattoos do appear, they are not prominent and only appear as small images, making their use de minimis.

The video game publisher also argued, in later motion for judgement on the pleadings, that Solid Oak Sketches would use the decision to “shakedown each of the publications and television programmes in which those players have appeared, as well as any other video game publisher that depicts the tattoos”.

Solid Oak Sketches responded that it isn't asking for NBA players’ permission to appear in public, but is arguing that “corporate entities that purposefully seek to commercially benefit from the use of the tattoos be held accountable for their actions and pay a royalty to the rightful owner of the intellectual property”.

It added: “Here, defendants have sought to create as close of a replication to the tattoos within their highly successful video games, promote the realism of the players to the consuming public, and avoid making any payment to plaintiff for the use of the copyright registrations it possesses.”

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