The bold statement that “copyright is for losers” has been attributed to the pseudonymous street artist, Banksy who has been hailed as the “most wanted man in art.” This blog explores the interplay between copyright law and video games and the reproduction of tattoos of athletes who are featured as avatars in the video games series: NBA 2K and WWE 2K. Take-Two Interactive Software, Inc. (“Take-Two”) is the video games publisher for these sport simulation video games as well as other franchises such as Grand Theft Auto.
According to the Business Insider, the global e-sports industry is projected to reach a market capitalisation of $1 billion in 2021. As the e-sports ecosystem continues to develop and diversify, intellectual property rights will become increasingly important and lucrative assets for stakeholders such as developers and publishers including Activision Blizzard (Call of Duty), Electronic Arts (FIFA and Madden NFL), Riot Games (League of Legends) and Epic Games (Fortnite).
“A video game is literally a bundle of intellectual property (IP) and contractual rights.” – Jas Purewal
Copyright is a property right which subsists in a range of works such as original literary, dramatic, musical or artistic works. Crucially, copyright protects the expression of an idea and not an idea itself. The idea-expression dichotomy embodies the inherent tension that exists within intellectual property law between simulating creativity and protecting the exclusive rights of IP holders.
In Take-Two Interactive Software, Inc. & Rockstar Games, Inc. v James & Others  the High Court granted Take-Two and its wholly-owned subsidiary, Rockstar Games a summary judgement in relation to the defendants’ liability for breach of contract and copyright infringement. Under Part 24 of the Civil Procedure Rules, a summary judgment is a procedure by which a claim or a particular issue of a claim may be decided without a trial. Rockstar Games are the developers and the publishers of Grand Theft Auto V (‘GTAV’) which is described in the judgment as “the best-selling video game of all time, having sold over 85 million copies.” In terms of the copyright infringement claim, the Claimants alleged that the Defendants’ developed the cheat software, Epsilon which copied elements of GTAV’s computer program which contains: (a) the instructions to run the game on a player’s computer; and (b) the libraries that provide (i) graphics such as weapons (artistic works); and (ii) sound such as the music that responds to a player’s actions during gameplay (musical works).
Facts: The Plaintiff (i.e. Claimant), Solid Oak Sketches, LLC, (“Solid Oak’”) brought a motion (i.e. claim) for copyright infringement against Take-Two and its wholly-owned subsidiary, 2K Games, Inc in relation to the reproduction of five tattoos (“the Tattoos”) that were depicted on the avatars of NBA players namely; Eric Bledsoe, Lebron James and Kenyon Martin (the “Players”). Solid Oak is the exclusive licensee of the Tattoos. Take-Two sought a summary judgment from the Southern District Court of New York and applied for (a) an order dismissing the copyright infringement claim; and (b) a declaratory judgment in the Defendants’ favour in relation to counterclaims of (i) de minimis use; and (ii) fair use of copyright works. In the US, a declaratory judgment is legally binding and akin to a final judgment.
Decision: De minimis: Take-Two’s use of the Tattoos fell below the requisite quantitative threshold of substantial similarity. The Tattoos rarely appear in the game and when the Tattoos feature in gameplay, they are so small and distorted because of camera angles and other game elements which renders the Tattoos unrecognisable.
Implied licence: The Players had an implied licence from the tattooists for unrestricted use of the Tattoos as elements of their likeness which predated the licences obtained by Solid Oak. The Players had granted the NBA the right to licence their likeness to third parties and the NBA had sub-licensed this right to Take-Two. Lebron James and Kenyon Martin had also given Take-Two permission to include the Tattoos on the Players’ bodies in NBA 2K.
Fair use: Use of the Tattoos in gameplay constituted fair use because (a) the Tattoos had previously been published; (b) the tattoo designs are more factual than expressive. For example, the “Child Portrait” tattoo is a reproduction of a photograph of the first child of Los Angeles Lakers forward, Lebron James; (c) the Tattoos were reproduced in their entirety to give effect to the transformative purpose of creating a realistic game experience; and (d) the commercial value of licensing the tattoo artwork for use in video games, apparel and memorabilia had not been diminished. It was held that Solid Oak could not licence the Tattoos in video games or other forms of media because the Tattoos are “imprinted on the bodies of Players” and Solid Oak does not have a licence to use the Players’ publicity rights which include their name and likeness.
Facts: The plaintiff, Catherine Alexander is a former tattooist who had inked five tattoos on WWE professional wrestler and arguably the G.O.A.T., Randy Orton who featured in wrestling simulation video games series: “WWE 2K16”, “WWE 2K17” and “WWE 2K18”. The Plaintiff brought a motion for partial summary judgment in relation to copyright infringement and testified that she had never given her clients permission to reproduce her tattoos in video games.
Decision: Take-Two relied on the same defences that had been successful in the NBA 2K case but the Southern District Court of Illinois was not persuaded that summary judgment should be granted in favour of Take-Two.
Implied licence: It was unclear whether discussions had taken place between the Plaintiff and Randy Orton in relation to (a) permitted use and distribution of the tattoo works; and (b) whether any implied licence included sublicensing rights. The scope of the implied licence was held to be a triable issue of fact.
Fair use: it was held that there was a material factual dispute between the parties in relation to the Defendants’ purpose in using the tattoo works.
De minimis: The District Court of Illinois does not recognise the de minimis defence and noted that the defence was successful in relation to “copying of a small and usually insignificant portion of the copyrighted works, not the wholesale copying of works in their entirety”.
In his final year of coaching the Chicago Bulls and Michael Jordan before going on to win more NBA championships with the Los Angeles Lakers and the late Kobe Bryant, Phil Jackson coined the 1998/99 season as “The Last Dance” which is the eponymous title of a 10-part ESPN and Netflix documentary. Take-Two’s favourable judgment in the NBA 2K may prove not to be “The Last Dance” for copyright infringement proceedings brought by exclusive licensees and tattoo artists.
Parallels can be drawn with the copyright infringement proceedings commenced by photographers involving celebrities such as Emily Ratajkowski, Gigi Hadid and Jennifer Lopez for the unauthorised use of photographs that have been posted on their respective Instagram accounts. Only time will tell if there will be a proliferation of copyright claims.
However, the WWE 2K case raises some thought-provoking questions: Should the likeness of athletes and their right to appear in the media be conflated with an implied licence for the unrestricted use and commercial exploitation of copyright protected works in video games? Is there a risk of a trend developing beyond the video games industry whereby the pursuit for the realistic depiction of likeness is used to circumvent the payment of licence fees for using copyright protected works?
I conclude with the bold assertion made by arguably the greatest NFL quarterback of all time, Tom Brady that “winners focus on winning and losers focus on winners”. Super Bowl LV was held on 7 February 2021 in Tampa, Florida between the Tampa Bay Buccaneers and the Kansas City Chiefs. Brady led the Bucs to their second Super Bowl title and his own historic seventh Super Bowl ring at the showpiece event of the NFL sporting calendar.
Words: Hilda-Georgina Kwafo-Akoto
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