IP Law Daily, COPYRIGHT—N.D. Ohio: Does an NBA video game ‘transform’ a player’s tattoo? A jury will have to decide, (Sep 21, 2022)
By Matthew Hersh, J.D.
The court refuses to decide central issues in the case on summary judgment.
A federal jury will have to decide whether a video game maker infringed upon a tattoo artist’s exclusive rights by reproducing and displaying avatars of three NBA players with realistic depictions of his inkwork, the federal district court in Cleveland has ruled. The court, in sending the case to trial, also declined to decide whether the tattooist’s implicit grant of a license to the players extended to the use of those tattoos in the video game (Hayden v. 2k Games, Inc., September 20, 2022, Boyko, C.).
The lawsuit arose when Take-Two Interactive Software, Inc., released the popular video game NBA 2K. That video game depicts players from the NBA in interactive simulations and allows players to control realistic avatars of over 400 NBA players—so realistic, in fact, that the avatars for LeBron James and two other players contained a depiction of their tattoos. This did not sit well with James Hayden, the tattooist who created the inkwork in question. The tattoo artist filed a copyright infringement lawsuit against the game maker as well as its distributor. The parties filed several summary judgment motions, leading to this opinion.
Fixation and originalist. The court began by granting summary judgment on three issues, both in the tattooist’s favor. The evidence overwhelmingly showed, the court found, that the tattoos in question had been registered and was also “fixed” in tangible form by their permanent inking upon the players’ bodies. Moreover, the court observed, the tattoos in question were also original, despite having been derived from prior artworks such as the Sistine Chapel and a playing card from a popular Las Vegas resort. The transformation into tattoos, the court observed, involved “countless artistic decisions, including as to the precise shape, style, expression, shading, line thickness, density, color, and orientation on the shoulder, to name just a few, each carried out through countless artistic and creative acts.” Moreover, the court found, drawing from the tattooist’s papers, that “[i]nking a quality tattoo on a body requires significant perception, vision, dexterity, and skill, given a human body’s irregular surface.” Thus, the tattoos qualified as original works.
De minimis use. Although the court granted summary judgment on these issues, it declined to remove from the jury several more closely disputed issues. The first was the issue of whether the game maker’s reproduction of the tattoos was de minimis. The game maker argued that the tattoos were small and difficult to discern on rapidly-moving figures in a fast-moving game. That may have been true, the court noted, but the reproduction of those tattoos was also intended to be highly realistic. A jury would have to decide whether the reproduction was de minimis.
Fair use. The court also declined to find as a matter of law that the game made fair use of the tattoos. The game maker argued that it reproduced the tattoos for a different purpose than the original works, namely to create “a virtual world which closely mirrors the real world, utilizing graphics, characters, gameplay and music.” But that was a matter best left for a jury to decide, the court held. Similarly, the court held, the jury would also have to assess and balance the nature of the work, the amount and substantiality of the use, and the artist’s potential market for licensing of the tattoos.
Implied license. So too would the jury have to decide whether the implicit license the tattooist gave to the players extended to the game maker as well. Nobody disputed that by creating the tattoos at the player’s behalf, the artist gave those players the right to display his work. But did that mean the tattooist intended to extend the license to the reproduction of the tattoos in realistic-looking avatars of those players? Once again, the court held, a jury would have to decide.
The Case is No. 1:17CV2635.
Attorneys: Daniel J. McMullen (Calfee, Halter & Griswold LLP) for James Hayden. Christopher T. Ilardi (Kirkland & Ellis LLP) for 2K Games, Inc. and Take-Two Interactive Software, Inc.
Companies: 2K Games, Inc.; Take-Two Interactive Software, Inc.
Cases: Copyright TechnologyInternet OhioNews GCNNews