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Judge Rules Copyright Lawsuit Over Tattoo Use in Video Game Can Proceed: What Might This Mean for the Video Game Industry and Virtual Sports Betting?

Should video game publishers have to pay or seek permission to use copyrighted tattoos on their characters, or is it allowed under the fair use doctrine? That’s the question before a federal judge in a novel copyright lawsuit in Manhattan. Video game makers as well as other media producers that may include tattoos in their work should be closely watching the outcome of this case.

Solid Oak Sketches owns the copyright registrations for five tattoos that are realistically depicted on NBA basketball players Lebron James, Kenyon Martin and Eric Bledsoe in the NBA 2K video game produced by 2K Games Inc. and Take-Two Interactive Software. Solid Oak is suing the video game makers over reproduction of the tattoos, claiming copyright infringement. The defendants (collectively, “Take-Two”) filed counterclaims seeking a ruling that its depictions of the tattoos constitute de minimis use and fair use under the law.

Neither party disputes that Take-Two realistically depicted the players’ tattoos, so the issue before the court is whether that copying is actionable.

Previous standards do not apply

In March, District Judge Laura Taylor Swain determined that she couldn’t rule on Take-Two’s motions because this case presents issues not found in prior rulings involving copyright infringement. Previously determined standards by the courts do not apply because the visibility and prominence of the tattoos on screen are affected by countless possible game variations that are dependent on each video game player’s choices, unlike a movie where the copyrighted object will appear in the same manner each time the movie is viewed.

The two sides don’t agree as to how much the copyrighted tattoos appear in the game, either, with Solid Oak maintaining a video game player can select one of the NBA players with the depicted copyrighted tattoos and can change the angle of the game to make the tattoos more prominent. Take-Two argues that the tattoos are only displayed briefly or partially, sometimes are out of focus, or are obscured by other graphics.

The customization of the video game presents an issue that hasn’t been seen in previous rulings, where parties could quantify how often the copyrighted work appeared on screen. The judge noted what appears on screen in a video game is highly dependent upon the individual playing the game.  She denied Take-Two’s motions at this time, which will be renewed at a later stage in the proceedings.

No objective perspective

“At this stage of the proceeding, 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. The Court is thus unable to conclude without the aid of extrinsic evidence that ‘no reasonable jury, properly instructed, could find that the two works are substantially similar,’” Judge Swain wrote. 

Courts will continue to see lawsuits like this one as more tattoo artists assert copyright claims over their work. A few weeks after this ruling, 2K Games (a defendant in this case) was sued by a tattoo artist in federal court in Illinois who says the video game maker published tattoos she inked on WWE wrestler Randy Orton in its WWE video games without her consent. She’s also asserting copyright infringement.

Virtual sports potentially impacted

The impact of these lawsuits could be felt in another video game segment – virtual sports betting. Virtual sports are computer-generated sporting events that are played out using software programs in which advanced algorithms determine the outcome. Both the skill of the game player and the luck elements inherent in real-world sporting events are accounted for in the algorithms.

Virtual sports’ graphics are typically quite advanced and may look like other realistic video games on the market. Virtual sports are gaining popularity in part because they allow for sportsbooks to offer gambling without betting on real-world sporting activities. However, on Monday, May 14th, the Supreme Court of the United States (“SCOTUS”) released a decision serving to effectively overturn the Professional and Amateur Sports Protection Act (“PASPA”), which previously outlawed sports wagering in most states. As states begin to discuss the possibility of legalizing and regulating traditional sports betting, the increased attention to and interest in other forms of sports betting, including virtual sports, is likely to increase. The Pennsylvania lottery just announced a partnership with Inspired Entertainment Inc. to deploy virtual sports products. The first two offered will be stock car racing and football, and the games will be streamed into retail venues and bars and taverns throughout the state via two dedicated channels throughout the day.

Developers of virtual sports may consider creating athletes in the games based on real-life athletes, which could include using specific tattoos of the athlete, to make people recognize an athlete without actually using his or her real name.

The ruling out of Manhattan could provide guidance for video game makers, as well as other content producers that feature real people’s tattoos, as to how much of a copyrighted tattoo can appear in a game or how often under the de minimis use or fair use doctrines, and at what point its use must be licensed or permission for use granted.

When faced with creating a character based on a real person with tattoos, all video game makers should consult with their legal team to determine what steps are best for their situation.

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