Many gaming ventures focus on real-world scenarios that include accurate depictions of landscapes, sports stages, and even celebrities. With ongoing innovations in technology allowing for more lifelike graphics and gaming imagery, it doesn’t come as a surprise that many artists are now asserting ownership over intellectual property that has been incidentally featured in photorealistic games. But as the courts have shown, these inclusions are not as casual as game developers may believe. In fact, as consumers progressively move more into the digital realm, questions are increasingly being asked around the legality of original works being repurposed and distributed without the owner’s consent. Let’s take a look at a few gaming IP disputes involving tattoos that have prompted confusion in the courts but, as of late, may create a precedent for comparable cases in the future.
Disputes Over Tattoo Depictions
It’s no secret that many popular video games, especially those that deal with sports, license hordes of intellectual property to make their product as realistic as possible. But this does not come without a variety of pitfalls, especially when the use of particular IP has not been properly evaluated.
We first saw how this issue can take shape when Solid Oak Sketches, LLC, a tattoo licensing company, sued 2K Games Inc. (owned by Take-Two Interactive Software Inc.) for copyright infringement. The suit alleged that Solid Oak held the copyright license for five tattoos on NBA players Lebron James, Eric Bledsoe, and Kenyon Martin featured in the NBA 2K basketball game. When taken to court, the infringement claims were rejected, citing de minimis use, implied license, and fair use as the defense, ultimately dismissing the case after deciding that the artist had granted the players nonexclusive licenses to use their art as part of their likeness.
This may have been the first time Take-Two was taken to court for IP infringement of this kind, but it wasn’t (and won’t be) the last. In 2018, tattoo artist Catherine Alexander sued Take-Two in the first-ever copyright lawsuit to reach trial involving the unauthorized reproduction of tattoos in creative content. And in this case, the proceedings looked completely different; as described by Copyrightlately, “The court in the Alexander case rejected every one of Take Two’s arguments, and did so without so much as mentioning the Solid Oaks Sketches case in its opinion.”
After COVID pushed back proceedings throughout four years of litigation, the suit finally came to a head after a five-day trial resulted in an Illinois federal jury awarding Alexander just $3,750 in damages over the tattoos she designed for WWE wrestler Randy Orton. While the monetary award wasn’t aligned with the amount Alexander was looking for (her lawyer suggested that Alexander should be awarded $2 for each copy of WWE 2K sold, equaling approximately $20 million), the case still set a precedent. As Alexander’s lawyer said, the verdict could open the floodgate for future tattoo fights. An additional dispute has already ignited against Take-Two over a similar issue; tattoo artist James Hayden has sued the NBA 2K developer over his art being featured on players like Tristan Thompson and Danny Green.
The different outcomes between the Solid Oaks case and the Alexander case may be attributed to one major factor. While the Solid Oaks case allowed the jury to consider defenses involving de minimis use and implied license, the court removed those from deliberation entirely in Alexander’s case. Instead, the jury was asked if TT’s conduct qualified as fair use under the Copyright Act, and the jurors chose in favor of Alexander while also concluding that none of their profits were attributable to Alexander’s art.
The Case’s Implications
The conflicting results in these cases are causing some confusion about the use of this type of IP not only in gaming, but in literature, entertainment, and more. By taking Alexander’s case to trial, the court illustrated that those with tattoos are not in control of their own likeness, opening the door for other objections to any use case that wasn’t explicitly agreed upon by the artist and the recipient. This prompts us to consider the disconnect between copyright law, bodily autonomy, and the First Amendment, which should theoretically protect tattoos after they are inked as they are considered part of a person’s identity. Since the tattoos were essential in realistically reflecting Orton’s look, they should be covered under an implied license or fair use; without this protection, those creating any type of visual content that includes the tattooed individual would require explicit permission from the artist. Further, the tattoo clients themselves would need to obtain a copyright assignment or license from the artists after getting inked (which, for many celebrities, would prove tedious and impractical).
Experts Can Help Define the Gray Areas
The Alexander case also illustrated how experts can aid in the instance of complex litigation as both the plaintiff and defense utilized an array of subject-matter experts throughout the case. Some of the experts included:
- A professor of video game development at the University of Utah testified that a realistic portrayal of Orton was important to the success and sales of WWE video games.
- A plaintiff’s damages expert opined on Take-Two’s profits from the sale of video games featuring Alexander’s tattoos.
- A professor of media studies and computer science at Washington University testified that Take-Two’s use of Orton’s tattoos was reasonable as they intended to create an accurate depiction of his likeness.
- A survey expert testified that players do not buy WWE 2K video games for Orton’s tattoos.
- A defendant’s damages expert to validate that the game’s profits were not attributed to the infringement.
At WIT, we have teams of gaming industry experts that are prepared to handle all aspects of intellectual property litigation and include professionals who are esteemed academics, experienced industry insiders, and subject area specialists. If your company needs help preparing for these challenges, reach out for gaming experts who are uniquely qualified to inform your litigation strategy.