Yesterday was the inaugural draft for the NBA 2K League, an important milestone in a traditional sports league’s first major push into a parallel esports world. The new league offers fans the experience of watching the best NBA 2K players in the world manipulate (digitally speaking) the best basketball players in the world in a video game with graphics so realistic, it’s almost like you’re watching the players themselves.
It’s an aspect of that realism that is at issue in a lawsuit filed against the makers of NBA 2K by Solid Oak Sketches, the owner of the copyrights in the designs behind many of the more prominent tattoos seen on players’ bodies during games, including those that adorn LeBron James and Kenyon Martin.
But don’t worry, NBA2K fans, this former copyright lawyer is reasonably confident that the game makers should and will win the case, despite the court’s recent order allowing it to proceed.
First, some background to bring you up to speed: assuming it has valid copyrights in the tattoo designs, Solid Oak has certain rights, including the right to prevent others from publicly displaying the designs without permission. That’s a right that is typically granted to others via a license. The makers of NBA 2K don’t have a license from Solid Oak to display the tattoos on the players’ arms in the video game, so Solid Oak sued them.
In response, one argument the game makers put forth is that their use is de minimis, meaning that even assuming that they are publicly displaying the tattoo designs, it’s done to such a minimal degree that it doesn’t matter for copyright purposes. I won’t delve into that question, as I think they lose that point, especially given how frequently a gamer experiences a player’s likeness, tattoos and all, up close and for extended periods, whether during actual game play, player selection or slow-motion replays.
Where the makers of NBA 2K should ultimately succeed in this case is through a second line of argument they’ve put forth regarding copyright fair use. This defense to copyright infringement allows someone to legally exploit the rights typically reserved to the copyright owner without a license, provided that certain factors exist. Courts examine four factors in determining whether a defendant’s use of a copyrighted work is “fair”:
- the purpose and character of the infringer’s use;
- the nature of the copyrighted work that is being infringed;
- the amount and substantiality of the portion taken; and
- the effect of the infringing use on the potential market.
All factors are relevant in determining fair use. I won’t comment here about which of the first three factors I believe favor the game makers, but it’s the fourth factor that should be the most important in vindicating them: the effect of their use of the tattoo designs on the potential market.
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So what does that mean? The effect on which market? How much of an effect? Again, a detailed analysis is beyond the scope of this article. But let’s start with the fact that, according to court documents, Solid Oak approached NBA 2K about licensing the designs in the tattoos. The lawsuit arose only after those talks failed. Solid Oak will no doubt argue that NBA 2K’s infringing use destroys that market – the one where it can license the rights to video game publishers. But that can’t be the relevant market for a tattoo designer. That market is in designing body art to be worn on physical bodies. NBA 2K’s use of the designs in the video games doesn’t hinder the artist’s ability to continue to exploit that market. At least one legal scholar has likened this distinction to one between empirically likely versus empirically unlikely markets. And another has identified the bizarre circularity in looking too broadly for “potential” markets in the context of an alleged infringement because the existence of the lawsuit itself creates the previously undeveloped market for licensing.
In other words, because I see a tattoo design on an athlete’s body, whether in a video game or on TV, I’m no less likely to go out and get that tattoo design or one similar from the artist. If anything, use of the tattoo designs helps the artist via free advertising, an especially pertinent point today, one day after we witnessed a publicized draft for players to play video games depicting professional athletes, some of them featuring Solid Oak’s tattoos.
It’s also helpful to frame the fair use analysis by asking ourselves what might happen if a court were to rule that the makers of NBA 2K are infringing by publicly displaying tattoo designs as inked on NBA players. It would certainly mean that sponsors would have to seek permission from tattoo artists before featuring an athlete displaying his or her body art in an advertisement. And it could even call in to question the rights of broadcasters to publicly display the tattoo designs on LeBron’s arms during televised NBA games. If that were the case, the NBA and the NBA 2K League should be less concerned about scrubbing the designs off their virtual players, and more concerned about investing in technology that would allow them to make the tattooed arms of LeBron James look clean during a live broadcast of the NBA Finals.
Taken to its extreme, that line of reasoning would also mean that LeBron himself could not be seen on television or in public without an explicit license from the tattoo designers. That absurd proposition, which raises dangerous issues of involuntary servitude, can’t be what tattoo designers expect or want. Reportedly, out of fears for its own legal liability, the NFL Players Association considered requiring its members to indemnify the union if the athletes didn’t bother to ask for a license while getting inked at the tattoo parlor.
These extreme examples are unlikely, not merely because of their absurdity, but because the parties in this case are likely to settle before the court can tell us whether the tattoo designs are infringing. Similar cases settled before the court could rule, including one involving use of Mike Tyson’s famous tattoo in the movie The Hangover. A settlement wouldn’t bring closure to this issue, which is a shame. None of the parties in this dispute benefit in a scenario where athletes are scared to get tattoos, advertisers are scared to feature athletes, and leagues are scared to create new methods of entertainment like the NBA 2K League.