Tattoo Copyright: No Go on Big Money Damages
08:40 AM
nba2k16.jpgBack in February, I geeked out over the latest tattoo law news in "Videogame Maker Sued for Copyright Infringement Over Basketball Stars' Tattoos." As I wrote in that post, a lawsuit was filed in federal court in New York against Take-Two Interactive and other companies associated with the video game NBA 2K16 for reproducing the tattoos of the basketball stars featured in the game series without permission.

The suit was filed by Solid Oak Sketches, a company who licensed the tattoo designs from the following artists who tattooed stars like Lebron James and Kobe Bryant:  Justin Wright (LeBron James), Shawn Rome (LeBron James), Tommy Ray Cornett (Eric Bledsoe and Kenyon Martin), Robert Benedetti (Kobe Bryant), and Leslie Hennelly (DeAndre Jordan). In those licensing agreements, the tattooers agreed to
8% of the net earnings of Solid Oak for their designs.

A couple of weeks ago, a ruling came down concerning that suit, and among some tattooers talking about it, there was a bit of confusion, so I figured I'd break it down a bit here.

On August 2nd, U.S. District Judge Laura Taylor Swain in Manhattan said that the videogame maker cannot be held liable to Solid Oak Sketches for statutory damages -- which could rack up as much as $150,000 per copyright infringement -- because Soild Oak did not register the tattoo designs with the US Copyright Office until 2015, years after the release of NBA 2K14 in 2013, when the alleged infringement of the tattoo designs began.

In order to obtain statutory damages and attorneys' fees, Solid Oak must have registered its copyright prior to the alleged infringement. Solid Oak argued that, because the NBA 2K16 version was released after copyright registration, they were still entitled to those statutory damages and attorneys' fees; however, the court didn't buy it, stating that "the first act of infringement in a series of ongoing infringements occurred prior to the work's copyright registration."

You can read that opinion and order here.

The Hollywood Reporter's article on the suit got some traction last week on social media, and that's where I found that some were confused about what the decision meant. The ruling does not mean that the court found that there was no copyright infringement, rather, they said that, because of when it was registered, Solid Oak and the artists were not going to get the really big money, which would have added up to a massive amount considering the number of tattoos represented in the games.

What Solid Oak and the artists are then left with is proving actual damages -- the money from demonstrated loss that they suffered as a result of the infringement, such as lost licensing revenue or any other provable financial loss directly attributable to the game's use of their artwork. That's tougher to do, but they could still see some decent money if the judge finds infringement.

The big argument of the defendant is that the use of tattoos seen on the bodies of the basketball stars is fair use and de minimis use. Stanford's general definition of fair use is "any copying of copyrighted material done for a limited and 'transformative' purpose, such as to comment upon, criticize, or parody a copyrighted work. Such uses can be done without permission from the copyright owner." And de minimis can be summed up as "the amount of material copied is so small (or 'de minimis') that the court permits it without even conducting a fair use analysis," as per this Stanford resource.

In their court filings, Take-Two asserts:

Indeed, if Solid Oak were correct, it would mean that anyone appearing in public, on a television program, or in an advertisement would need to license the display of their tattoos. This is not the law and, if it were, it would be an encroachment on basic human rights.
Take-Two also made some other interesting arguments which you can read here.

It's really a fascinating debate and I really can't wait till a court rules on it rather than the cases just settling, as what happened to the Mike Tyson Tattoo Case.

For more on my writing on tattoo copyright check these links:

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