Video Game Maker Has Mixed Success in Copyright Infringement Lawsuits over Depictions of Copyrighted Tattoos

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.

In defending against the plaintiff’s motion, Take-Two acknowledged the copying but argued that it was authorized and therefore non-actionable. The Court held that this was insufficient to establish a material issue of fact on the issue of actionable copying. As the Court explained, Take-Two had the burden to prove its use was authorized, and since there was no dispute that the plaintiff owned valid copyrights in the five tattoos at issue, the plaintiff satisfied her burden on summary judgment on the issue of actionable copying. Accordingly, the Court granted the plaintiff’s motion.

On the issue of implied license, the Court held that there was a genuine issue of material fact concerning whether the plaintiff intended Take-Two copy and distribute her work. According to the Court, it was also unclear whether the plaintiff and Orton had ever discussed permissible forms of copying and distributing the tattoos or whether any implied license that Orton possessed including the right to grant sublicenses to third parties such as Take-Two. In the NBA 2K suit, the court found an implied license by virtue of the tattoo artists knowingly inking designs on famous clients who could reasonably be expected to have their tattoos displayed.

On the defense of fair use, the Court found genuine issues of material fact concerning the purpose and character of the use and whether the effect of the use harmed the potential market for or value of the tattoos. The Court found that further factual evidence was required to determine whether the use constituted fair use.

On the final defense of de minimis use, the Court rejected the argument that carried the day in the NBA 2K suit that the use of the tattoos is de minimis when considering the overall game. Take-Two argued its use was de minimis because the tattoos were only a small part of the game as a whole and even when visible were hard to see in the game. The Court rejected this argument, explaining that de minimis use is measured by the amount of the copyrighted work copied not by the extent to which the copied work makes up the defendant’s work.

The Court’s full opinion is available online here.

If you are a copyright owner who is seeking to recover from a licensee who is exceeding the scope of a license, it is important to retain an experienced copyright attorney who can help ensure your access to all available remedies. Similarly, a licensee being accused of exceeding the scope of a license needs an experienced copyright attorney to defend against attempts to obtain infringement remedies when only breach of contract remedies are available. Super Lawyers named Illinois commercial law trial attorney Peter Lubin a Super Lawyer and Illinois business dispute attorney Patrick Austermuehle a Rising Star in the Categories of Business Litigation, Class Action, and Consumer Rights Litigation. Lubin Austermuehle’s Illinois business trial lawyers have over thirty years of experience in litigating complex class action, copyright, trademark, trade secret, non-compete agreement, libel suits, consumer rights and many different types of business and commercial litigation disputes.

Our Chicago and Wheaton business dispute lawyers, civil litigation lawyers and copyright attorneys handle emergency business lawsuits involving copyrights, trademarks, injunctions, and TROS, covenants-not-to-compete, franchise, distributor and dealer wrongful termination and trade secret lawsuits and many different kinds of business disputes involving shareholders, partnerships, closely held businesses and employee breaches of fiduciary duty. We also assist Wheaton and Naperville area businesses and business owners who are victims of fraud. You can contact us by calling at 630-333-0333. You can also contact us online here.

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