Copyright and Tattoos in Realistic Gaming

Realistic games like the Grand Theft Auto franchise recreate entire cities, cities that are full of copyrighted and trademarked images. Important questions have arisen and gone to court regarding the boundaries of trademark or copyright infringement claims in these recreations, which will likely become more important and nuanced moving forward as the law and technology continue to develop in this area.

In this article, I examine Solid Oak Sketches, LLC v. 2K Games, Inc., a New York district court case that ruled on whether recreating NBA player tattoos as part of a realistic game constitutes copyright infringement. This suit is similar to the copyright infringement suit faced by the makers of The Hangover over Mike Tyson’s facial tattoo. This suit settled out of court, however, and thus did not produce any case law to help guide subsequent defendants.

Solid Oak Sketches, a tattoo licensing company that purchased the copyright for several tattoos after they were inked on NBA players whose likenesses were recreated for the realistic basketball simulation game NBA 2K. They sued the game developers, marketers, and publishers for copyright infringement for recreating these tattoos as part of the likeness of players like LeBron James featured in their game.

In Solid Oak Sketches, LLC. v. 2K Games, Inc., the Southern District of New York court ruled on three aspects of copyright law: fair use, de minimus use, and likeness rights.

Realistic games are increasingly popular as gamers demand more of graphics, but what about copyrighted material that they must include for realism?

Fair Use

Fair use is a defense against copyright infringement that allows the use of copyrighted media without the permission of the rightsholder. The court weighs 4 factors in their determination: (1) the purpose and character of the use; (2) the nature of the copyrighted work; (3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and (4) the effect of the use upon the potential market for or value of the copyrighted work.

After framing the question of fair use as a “mixed question of fact and law,” the court found:

(1) the Defendants’ use of the tattoos was “transformative” as the tattoos were incidental and the game didn’t have much to do with them; the depiction of the tattoos was a mere “glimpse” and barely visible; the tattoos were merely one of many recreated elements of the game to give it a realistic feel and were not included for their expressive value; and the tattoos are an inconsequential portion of the game, comprising only 0.000286% to 0.000431% of the total game data.

(2) The tattoos were previously published, more factual than expressive, and weren’t particularly original works of art, rather, were themselves recreations of pre-existing motifs and photographs that the tattoo artists did not create.

(3) Despite the fact that the entire work was copied, the court noted that copying the entirety of a work is sometimes necessary to make fair use of the image, as it was in this case, to “effectuate the transformative purpose of creating a realistic game experience.” Additionally the court noted that the tattoos were significantly smaller than they were in real life.

(4) Lastly, the court noted that Solid Oak had never profited by licensing tattoos to gaming developers, there was no market for licensing tattoos in video games, and that none would likely develop.

De Minimis Use in the Context of “Substantial Similarity”

De minimis use, meanwhile, is a defense against copyright infringement as infringement requires both that there be copying of a copyrighted work, and that this copying is illegal because a substantial similarity exists between the defendants work and the protectable elements of the plaintiff’s. The Second Circuit court spelled out de minimis use as outside of the “substantial similarity” required in Castle Rock Entertainment, Inc. v. Carol Publishing Group, Inc., stating "To establish that the infringement of a copyright is de minimis, and therefore not actionable, the alleged infringer must demonstrate that the copying of the protected material is so trivial ‘as to fall below the quantitative threshold of substantial similarity, which is always a required element of actionable copying.’" The factors for a determination of de minimis use is (1) the amount of the copyrighted work copied; (2) the observability of the copied work - the length of time observable in the allegedly infringing work; and (3) factors such as focus, lighting, camera angles, and prominence. These factors are judged from the viewpoint of an ordinary observer, which, in this case, would be someone playing or watching the game and not specifically looking for copyright infringement.

In its analysis, the court considered that the tattoos were only on 3 of over 400 players, and that, even should those players be selected, the tattoos appear “small and indistinct, appearing as rapidly moving visual features of rapidly moving figures in groups of player figures.” Additionally, the tattoos were not featured in any of the game’s marketing, thus the court sided with Defendants and found the use was in fact de minimis.

Likeness Rights

Lastly, the court considered the likeness rights of the players involved, and whether the tattoos included an implied license to the tattoo copyright. This is a fairly interesting topic as, should the court decide against an implied license, this would mean that any tattoo copyright owner would also arguably own part of the likeness rights of anyone who displays their tattoo: considering how some celebrities have facial tattoos and financially depend on their ability to show their face in public, i.e. Mike Tyson, this could be particularly problematic.

In rendering its decision, the court looked to other Second Circuit court decisions like Weinstein Co. v. Smokewood Entertainment Group, LLC, where the court found that a non-exclusive license was granted “where one party created a work at the other’s request and handed it over, intending that the other copy and distribute it.” The court weighed the factors, finding that “the undisputed factual record clearly supports the reasonable inference that the tattooists necessarily granted the Players nonexclusive licenses to use the Tattoos as part of their likenesses… the tattooists intended the Players to copy and distribute the Tattoos as elements of their likenesses, each knowing that the Players were likely to appear in public, on television, in commercials, or in other forms of media."

The Takeaway

While this is not a Supreme Court case and thus not binding on jurisdictions outside NY, this represents an important milestone of case law guaranteeing the ownership of likeness rights for celebrities with tattoos, offering at least a small amount of certainty that gaming studios (and all businesses in general) depend on. Further, it also represents another step similar to the Ninth Circuit court’s finding in E.S.S. Entertainment 2000 v. Rock Star Video, a trademark infringement lawsuit over the recreation of a strip club as part of their realistic in-game depiction of the City of Los Angeles, towards allowing faithful recreations of the real world in realistic gaming.