A multi-million dollar lawsuit for copyright infringement against Take Two Software, the creators of NBA 2K16 has proved to be anything but a slam dunk.  The alleged infringement concerns player avatars displaying tattoos worn by several NBA stars including LeBron James and Kobe Bryant.  Last week, Take-Two filed a motion for judgment on the pleadings arguing its display of the tattoos is de minimis and qualifies as fair use.

The plaintiff, Solid Oak Sketches, purchased the tattoos from the original artists and first filed suit in February of 2016 seeking more than $1.1 million for a perpetual license to use the designs in Take Two’s NBA 2K series.  Although it is undisputed a tattoo can qualify for copyright protection, the parties passed the question whether Take Two’s display of the tattoos constitutes actionable infringement to Judge Laura Swain of the U.S. District Court for the Southern District of New York.  The issue whether tattoos must be licensed to appear in creative works surfaced once before when Mike Tyson’s tattoo artist sued the makers of The Hangover Part II in 2011, but that case ultimately settled.

In its motion, Take Two contends the display of the tattoos is de minimis because NBA 2K16 mainly uses a full-court camera during gameplay, rendering any tattoo on an avatar’s body virtually unrecognizable.  Additionally, Take Two contends its display of the tattoos is sufficiently transformative to constitute fair use.  The motion states the players use the tattoos for purposes of self-expression while Take Two incorporates them into NBA 2K16 to deliver a more authentic and realistic gameplay experience.

Overall, Take Two warned a denial of its motion would open the door to tattoo artists seeking fees every time a player commercializes his or her likeness or even appears in public and thereby publically displays the work under 17 U.S.C. § 106(5).  “Indeed, if Solid Oak were correct, it would mean that anyone appearing in public, on a television program, or in an advertisement would need to license the display of their tattoos,” argued Take Two in its answer to the original complaint.  “This is not the law and, if it were, it would be an encroachment on basic human rights.”

Solid Oak has not yet issued a public statement, but is expected to argue Take Two’s public policy concerns are overblown as this case deals with commercial use and not the mere display of a tattoo in public.  Plus, Solid Oak could assert Take Two’s use impacts the market for derivative merchandise bearing designs of the tattoos.

Because Solid Oak registered the tattoo copyrights at issue in 2015 and the first alleged instance of infringement came with Take Two’s 2014 publication of NBA 2K14, the court precluded Solid Oak from recovering statutory damages.  However, actual damages remain on the table and could reach seven figures.