From a commercial standpoint, the representation and exploitation of an athlete's image and likeness is of utmost importance both in traditional sports as well as their video game virtualizations. Within this context, one of the most complex issues at stake is the intersection between image rights, in which issues of privacy and publicity play a fundamental role, and freedom of speech.
As gaming and esports become more and more popular worldwide, intriguing questions are being raised: Who is the "owner", from a copyright perspective, of the recreation of an athlete's tattoo in a video game? The tattoo artist who designed the work? The athlete in whose skin the tattoo has been inked? The company that created, developed and marketed the relevant video game?
On
In a nutshell, in granting summary judgment in favor of the defendants, the district court in
First released in 1999, NBA 2K is a series of basketball sports simulation video games developed and marketed annually since 2005 by major video game publisher
NBA 2K is one of the most successful video games ever published, with almost 90 million copies sold as of
Clearly, at issue here is not Take-Two's right to use the relevant NBA players' name, image and likeness per se. All these features are part of a major license agreement that Take-Two entered into with the NBA in 2019 for the purpose of being granted, in consideration for about
Since 2016, tattoo company
In rendering its decision in favor of the video game developers, consideration was given by the SDNY to the following elements of NBA 2K:
- the tattoos reproduced in the defendants' video game are shown solely on the players on which they are inked, and thus only three out of over 400 NBA athletes;
- the three players' tattoos are out of focus and they can only be seen as "undefined dark shading" on the arms of the players; and
- the tattoos' display is "small and indistinct", making them appear as visual features that move rapidly along with groups of player figures.
In granting summary judgment in favor of Take-Two,
- there was no "substantial similarity" and the degree of defendant's copying of the tattoos was de minimis;
- Take-Two had obtained an implied license, on a non-exclusive basis, to reproduce and exploit the players' tattoos in its NBA 2K video games; and
- In creating the copies of the NBA players' tattoos, Take-Two's actions constituted "fair use", under
De Minimis Use
Well settled case law in the
Moreover, as pointed out by the SDNY in this case - citing Castle Rock Entm't, Inc. v. Carol Publ'g
In issuing its ruling, the SDNY underlined that no reasonable jury could reach the conclusion that Solid Oak had met its burden of proving that Take-Two's use of the copyrighted material was substantially similar to Solid Oak's copyrighted work. In fact
Therefore, in the eyes of the court, the defendant's copying was not substantial but, instead, was deemed a mere de minimis.
Implied License
In addition, the federal court in
Usually, individuals sporting a tattoo are deemed to have obtained some sort of implied license from their tattooists. Such a license would permit the person on whom the tattoo has been inked to exhibit the tattoo in public (as any other works of art), as well as to exploit the copyrights stemming from such tattoo in pictures or videos.
In carrying out her analysis, the district court judge recognized that the
In this case, the SDNY judge analyzed the evidence provided by the parties and found that the tattooists granted the players with a non-exclusive implied license on the basis that the athletes, as internationally-renowned sports talents, had the intent to make the tattoos an intrinsic part of their public life.
As per
Thus, as noted by the SDNY, these implied licenses would include the exploitation of the athletes' images and likeness, including their tattoos, for marketing and sponsorship: "Defendants had permission to include the Tattoos on the Players' bodies in NBA 2K because the Players had an implied license to use the Tattoos as part of their likeness, and the Players either directly or indirectly [through the NBA] granted Defendants a license to use their likenesses. Defendants are therefore entitled as a matter of law to summary judgment dismissing Plaintiff's copyright infringement claim for this reason as well".
Fair Use
Finally, the SDNY analyzed this case under the so-called "fair use" doctrine, which creates an exception to the shield of copyright protection when the reproduction of someone's work is carried out, for a limited and "transformative" purposes, for reasons of criticism, comment, news reporting, teaching, scholarship, or research. 17 U.S.C. §107.
When courts address fair use, they take into considerations several factors, in accordance with the Copyright Act, such as the purpose and character of the use, as well as the nature of the copyrighted work. Under
A court's "transformative use" analysis would include "(i) whether the two works have different purposes, (ii) the size of the reproductions, (iii) whether the expressive value of the reproduced material is minimized, and (iv) the proportion of copied material". Moreover, "courts would also take into consideration whether the allegedly infringing use was commercial in nature". Campbell v.
Here, the SDNY found that "undisputed evidence" demonstrated that Take-Two's use of the tattoos was transformative, thus ruling that their reproduction of the tattoos in the video games was protected by the fair use doctrine.
As noted by
Conclusions
The judgment rendered by the SDNY in
Although this ruling has been issued by a district court judge - and thus it does not carry as much precedential weight as a judgment of a court of appeals would - its persuasiveness may have an influence on similar cases.
For instance, Take-Two is currently involved in a lawsuit with
The wrestle over tattoos is set to continue.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
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