NBA 2K Tattoo Copyright Dispute Blocked

by Manatt, Phelps & Phillips, LLP

Manatt, Phelps & Phillips, LLP

A case of whether tattoos are entitled to de minimis and fair use copyright protection continues to move through the courts, with a New York federal judge allowing a tattoo artist’s lawsuit against a video game manufacturer to move forward.

Solid Oak Sketches owns the copyright registrations for five tattoos on the bodies of professional basketball players LeBron James, Kenyon Martin and Eric Bledsoe. The company filed suit accusing Take-Two Interactive Software of violating its rights by including the tattoos in the avatars of those players in its NBA 2K video games.

The defendant filed counterclaims seeking a declaratory judgment that its depictions of the disputed tattoos constituted both de minimis and fair use. But U.S. District Judge Laura Taylor Swain rejected the arguments.

In considering the de minimis argument, the court was stymied by the video game format when it tried to assess the amount of copying under either the qualitative or quantitative standards.

“[T]he visibility and prominence of the tattoos on screen are affected by countless possible game permutations that are dependent on individual players’ choices,” the court said. “A side-by-side visual comparison of the works in question here to determine whether the use of the copyrighted material was de minimis as a matter of law is a wholly different exercise than in prior decisions.”

While the defendant characterized the appearance of the tattoos as “observable only fleetingly,” “displayed only briefly,” and “a small part of the graphical display,” the plaintiff countered that an NBA 2K player can select one of the tattooed players and employ one of the game’s features “to focus, angle the camera on, or make the subject tattoos more prominent” and “the overall observability of the subject tattoos can be fairly significant.”

In denying the motion as to de minimis use, the court concluded that “at this stage of the proceedings, there is no objective perspective as to how the Defendants’ video game is generally played, or to what extent certain game features can be or are actually utilized, that would allow this Court to make determinations about the choices and subsequent observations of the ‘average lay observer,’ or about the observability and prominence of the Tattoos.”

Judge Swain faced a similar conundrum with regard to the issue of fair use. “Defendants’ claim of fair use of the Tattoos cannot be resolved at this stage of the proceedings,” the court wrote. “Because of the difficulties inherent in conducting a side-by-side comparison of the video game and the Tattoos, further evidence must be considered in connection with the fact-intensive question of the applicability of the fair use defense. As the differences between the Tattoos and Defendants’ use in the video cannot ‘be resolved with assurance on a visual comparison of the works alone,’ Defendants’ fair use of the Tattoos is not ‘so clearly established on the face of the [complaint] as to support dismissal.’”

To read the opinion and order in Solid Oak Sketches v. 2K Games, Inc., click here.

Why it matters: The court’s decision clearly sets forth the challenges the copyright holders faced when they apply existing precedent to video game avatars. Because of the games’ many features and options, it is difficult, at best, to determine whether substantial similarity exists between the tattoos and what the average lay observer views in each iteration of the game. As what is observable on screen is highly variable and depends on the choices of the individual user, the court denied judgment on the pleadings and moved the case forward.


DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© Manatt, Phelps & Phillips, LLP | Attorney Advertising

Written by:

Manatt, Phelps & Phillips, LLP

Manatt, Phelps & Phillips, LLP on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
Sign up using*

Already signed up? Log in here

*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Custom Email Digest
Privacy Policy (Updated: October 8, 2015):

JD Supra provides users with access to its legal industry publishing services (the "Service") through its website (the "Website") as well as through other sources. Our policies with regard to data collection and use of personal information of users of the Service, regardless of the manner in which users access the Service, and visitors to the Website are set forth in this statement ("Policy"). By using the Service, you signify your acceptance of this Policy.

Information Collection and Use by JD Supra

JD Supra collects users' names, companies, titles, e-mail address and industry. JD Supra also tracks the pages that users visit, logs IP addresses and aggregates non-personally identifiable user data and browser type. This data is gathered using cookies and other technologies.

The information and data collected is used to authenticate users and to send notifications relating to the Service, including email alerts to which users have subscribed; to manage the Service and Website, to improve the Service and to customize the user's experience. This information is also provided to the authors of the content to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

JD Supra does not sell, rent or otherwise provide your details to third parties, other than to the authors of the content on JD Supra.

If you prefer not to enable cookies, you may change your browser settings to disable cookies; however, please note that rejecting cookies while visiting the Website may result in certain parts of the Website not operating correctly or as efficiently as if cookies were allowed.

Email Choice/Opt-out

Users who opt in to receive emails may choose to no longer receive e-mail updates and newsletters by selecting the "opt-out of future email" option in the email they receive from JD Supra or in their JD Supra account management screen.


JD Supra takes reasonable precautions to insure that user information is kept private. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. However, please note that no method of transmitting or storing data is completely secure and we cannot guarantee the security of user information. Unauthorized entry or use, hardware or software failure, and other factors may compromise the security of user information at any time.

If you have reason to believe that your interaction with us is no longer secure, you must immediately notify us of the problem by contacting us at In the unlikely event that we believe that the security of your user information in our possession or control may have been compromised, we may seek to notify you of that development and, if so, will endeavor to do so as promptly as practicable under the circumstances.

Sharing and Disclosure of Information JD Supra Collects

Except as otherwise described in this privacy statement, JD Supra will not disclose personal information to any third party unless we believe that disclosure is necessary to: (1) comply with applicable laws; (2) respond to governmental inquiries or requests; (3) comply with valid legal process; (4) protect the rights, privacy, safety or property of JD Supra, users of the Service, Website visitors or the public; (5) permit us to pursue available remedies or limit the damages that we may sustain; and (6) enforce our Terms & Conditions of Use.

In the event there is a change in the corporate structure of JD Supra such as, but not limited to, merger, consolidation, sale, liquidation or transfer of substantial assets, JD Supra may, in its sole discretion, transfer, sell or assign information collected on and through the Service to one or more affiliated or unaffiliated third parties.

Links to Other Websites

This Website and the Service may contain links to other websites. The operator of such other websites may collect information about you, including through cookies or other technologies. If you are using the Service through the Website and link to another site, you will leave the Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We shall have no responsibility or liability for your visitation to, and the data collection and use practices of, such other sites. This Policy applies solely to the information collected in connection with your use of this Website and does not apply to any practices conducted offline or in connection with any other websites.

Changes in Our Privacy Policy

We reserve the right to change this Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our privacy policy will become effective upon posting of the revised policy on the Website. By continuing to use the Service or Website following such changes, you will be deemed to have agreed to such changes. If you do not agree with the terms of this Policy, as it may be amended from time to time, in whole or part, please do not continue using the Service or the Website.

Contacting JD Supra

If you have any questions about this privacy statement, the practices of this site, your dealings with this Web site, or if you would like to change any of the information you have provided to us, please contact us at:

- hide
*With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name. Or, sign up using your email address.