Copyright infringement lawsuits over tattoos have become increasingly popular since Mike Tyson’s tattoo artist famously sued Warner Brothers over its recreation of Tyson’s face tattoo on the face of actor Ed Helms in the Hangover II. The latest bout of suits involving copyrighted tattoos involves video game maker Take-Two Interactive Software.
Take-Two is responsible for a number of popular game franchises including Grand Theft Auto, NBA 2K, and WWE 2K. In addition to releasing some of the most popular video games titles of the year, Take-Two has found itself defending against two separate copyright infringement suits over the company’s use of tattoos in its NBA 2K and WWE 2K games.
A federal judge in New York earlier this year dismissed the lawsuit over Take-Two’s depiction of athletes’ tattoos in its NBA 2K video games. In dismissing the lawsuit, the judge found that Take-Two’s use of the tattoos did not infringe the plaintiff’s copyrights because Take-Two had an implied license to display the tattoos and also because Take-Two’s use constituted fair use and was de minimis in the context of the entire games.
The second lawsuit filed in an Illinois federal court concerned Take-Two’s depiction of tattoos in its WWE 2k games. After the case proceeded to discovery, the parties filed cross-motions for summary judgment. The plaintiff’s motion sought partial summary judgment on the issue of actionable copying based on Take-Two’s admission “to copying Alexander’s tattoos in their entirety in order to depict Orton in WWE 2K as he appears in real life.” Take-Two’s motion asserted the same affirmative defenses of implied license, fair use, and de minimis copying. Despite the similarity of the cases and Take-Two’s defenses, the federal judge overseeing the Illinois case did not warm to Take-Two’s arguments. Continue reading ›