De Minimis Use; Take-Two Claims NBA 2K Tattoos Protected by Fair Use

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NBA 2K - Image via Game Zone

Take-Two Interactive, the software company that wholly owns Rockstar Games and 2K Games, is attempting to shut down a lawsuit filed over copyrighted tattoos on LeBron James and other players who appear in the popular basketball franchise “NBA 2K”

Take-Two filed a motion for summary judgment in a New York federal court Wednesday, the game makers said the “troubling” case must be “halted in its tracks.” They claim that the tattoos that appear in the game are protected by copyright law’s doctrines of fair use and de minimis use.

In some cases, the amount of material copied is so small (or “de minimis”) that the court permits it without even conducting a fair use analysis. Essentially it allows for small amounts of work to be legally used.

Matthew Siegler and his Solid Oak Sketches LLC sued Take-Two last year, claiming the company infringed on copyrights covering eight different designs that NBA 2K developers etched on James, Kobe Bryant and other players. According to Siegler, Solid Oak bought the rights to the tattoos from the artists who tattooed the players.

However, Take-Two doesnt see things exactly the same. The company called Siegler an “opportunist” seeking a “troubling” and unprecendented interpretation of copyright laws. Take-Two held back no punches, calling the case agaisnt them “profit-making litigation.”

“In essence, (Siegler) argues that these public figures must 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,” the developer wrote.

“No case has interpreted copyright law as providing such right, and doing so here would inhibit copyright’s purpose of encouraging the creationof new works,” Take-Two wrote.

According to Law360, Solid Oak offered to let Take-Two use the tattoos in the game this year in exchange for $819,000 , or perpetually for $1.14 million but apparently Take-Two declined the offer.

This seems like a smart decision because it doesnt look like Siegler Solid Oak have much of a case. Take-Two is arguing that the use of the tatoos was de minimis and should not count as infirgement.

“The tattoos rarely appear in NBA 2K as they only are displayed when the players on whom they are inked are selected from the over 400 other NBA players that are available,” Take-Two wrote. “Even when the tattoos appear, they are not prominnet as the game camera generally uses a full court shot with the players’ avatars appearing as small images.”

They also are arguing that the tattoos are protected under fair use.

“Take-Two is not a rival tattooist that has replicated a creative design and inked it on a new person,” the company wrote. “Rather, its use is completely differetn in a massive, highly creative video game featuring a virtual world that only uses players tattoos to realistically capture how the players actually look.”

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