Tattoos and video games are back in court. “Fair use” may be the key.
Solid Oak alleges copyright infringement stemming from makers of the NBA 2K video game using images of tattoos of NBA players in the video game. The video game maker claims the defense of Fair Use.
The elements of Fair Use are described in this post.
The 4 factors to show Fair Use are:
1. The purpose and character of the use, including whether such use is a commercial nature or is for nonprofit educational purposes;
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.
Essentially, the argument is that the copying of the copyrighted material is “de minimis” since Solid Oak is not suing over all the tattoos in the case.
Notably, the Plaintiff in this case filed copyright registrations for the exclusive license of tattoos of certain players within the video game which makes the lawsuit and claims a little curious. One might see this as a forward-thinking strategy to protect those tattoo artists. Others might see it as a form of trolling to induce these types of lawsuits.
Solid Oak notes that it is not asking for those NBA players with tattoos to seek permission every time to go into public but when “corporate entities that purposefully seek to commercially benefit from the use of the Tattoos be held accountable for their actions and pay a royalty to the rightful owner of the intellectual property.”
It dismisses the video game maker’s argument for Fair Use since it claims that the players depicted are prominently featured, used in its entirety, the purpose for the use for the tattoo images is commercial in nature and affects the market for the copyrighted work. Solid Oak also argues against the de minimis argument of 2K Games as well.
Since this case is at the initial pleadings stage, Solid Oak is requesting further discovery prior to a decision on the pleadings. We will continue to follow this interesting case as the decision will address issues of the Fair Use defense.