Take-Two has had its day in court. The video game holding company has won a case against Solid Oak Sketches, a tattoo studio known for inking celebrities, such as basketball athletes LeBron James, Kenyon Martin, and Eric Bledsoe. The studio had taken Take-Two to task over the copyright protection of those tattoos that have appeared in NBA 2k and similar games.
The main legal question was whether tattoos belong to the person whose body they are one, or if the artists deserve copyright protection for their work - which is to say, limiting others from profiting off their representation.
In siding with Take-Two, the judge took a rather peculiar route in explaining their decision. The judge stated:
“The Tattoos only appear on the players upon whom they are inked, which is just three out of over 400 available players. The undisputed factual record shows that average game play is unlikely to include the players with the Tattoos and that, even when such players are included, the display of the Tattoos is small and indistinct, appearing as rapidly moving visual features of rapidly moving figures in groups of player figures. Furthermore, the Tattoos are not featured on any of the game’s marketing materials.”
The judge goes on to state that because the size of the tattoos in real life compared to their in-game representations are so small, and the gameplay so fast, players hardly notice or even identify that images on the players.
The rationale behind the decision is strange because, at its core, it does not seem like the main issue was addressed. Would the decision have been different is 10 players out of 400 had tattoos? Or 100? At what threshold does copyrighted material become protected?
Put another way, we can look to one of the other major lawsuits in recent history involving the representation of a tattoo artist’s work without permission between Warner Bros. and S. Victor Whitmill over the copyrighted tattoo designed for boxer Mike Tyson, but used on Ed Helms in The Hangover Part II.
In that case, the two parties settled their dispute quickly, likely in large part to Judge Catherine D. Perry referring to some of the defenses used by Warner Bros. as “silly.” Whitmill, it seems, received some form of compensation to settle his case, and everything was fine.
While Take-Two has won this case, it would not be surprising if there were to be an appeal. The judge’s reasoning seems contradictory to the case of The Hangover Part II, and yet, both cases seem to feature the same core components of copyright infringement when it comes to tattoo artists and their designs, but on a smaller scale.
Source: techraptor.com, hollywoodreporter.com