Take-Two argues fair use in NBA 2K tattoo lawsuit

Take-Two is presenting the case in court that its controversial use of real players' tattoos in their digital NBA 2K representations counts as fair use.

The argument is the latest to be put forward in a protracted court case that has seen tattoo studio Solid Oak Sketches accuse the publisher of knowingly violating copyright applicable to its work.

As revealed by The Hollywood Reporter, Take-Two believes it has every right to realistically represent the look of players it has licensed for use in its games. However, Solid Oak Sketches had previously acquired the rights to works by numerous tattoo artists.

While the reality of owning rights to tattoo works is not under question, Take-Two believes that fair use laws mean they are free to represent player's body art realistically.

Simply speaking, 'fair use' refers to cases where an image or copyrighted work is considered so widely disseminated in the public sphere that it can be reproduced without diminishing the value of the work or damaging the owner. In the NBA 2K case - initially taken to the courts in February 2016 - Take-Two's notion is that the players appear so often in the public eye with their tattoos on show, there is no claim to be made when those players' likenesses are shared further.

"In essence, Solid Oak argues that these public figures must seek its permission every time they appear in public, film or photographs and that those that create new works depicting the players as they actually appear (with their Tattoos) should be enjoined and pay damages to Solid Oak," said Take-Two attorney Dale Cendali, as quoted by The Hollywood Reporter.

"Yet, no case has interpreted copyright law as providing such a right, and doing so here would inhibit copyright's purpose of encouraging the creation of new works. This is particularly troubling at a time when tattoos are becoming increasingly popular."

To see victory in the case, Take-Two's legal team must convince US District Judge Laura Taylor Swain that video games as a medium are relevantly applicable to existing laws and cases around IP rights and ownership. The findings could prove an influential case in how copyright and IP applies to video games generally.

Most pertinently, if Solid Oak Sketches wins the case, they will be able to pursue infringement or damages claims against any other games, publishers and studios that may have used the players in question, if its tattoos are depicted in detail.

Significantly, in a judge's brief, Take-Two claimed that Solid Oak Sketches has not itself obtained the trademark or publicity rights required to produce the tattoo designs in question on merchandise.