2K Games Says Summary Judgment Appropriate in Tattoo Artist’s NBA 2K Misappropriation Case

Take-Two Games Inc. and 2K Games Inc. (Take-Two) argued that there are no questions of fact left to dispute in the trademark infringement case brought by tattoo artist Hayden James over the use of six tattoos he inked on NBA stars Danny Green, LeBron James, and Tristan Thompson. According to the heavily redacted reply in support of summary judgment, the deposition testimonies of the players cement Take-Two’s defenses, warranting the case’s end.

The plaintiff sued video game developer Take-Two over what he said was the unlicensed and illegal use of his work on the players’ bodies in the company’s popular NBA 2K series. The case has been proceeding through discovery since the Cleveland, Ohio federal court dismissed some claims in March 2019.

Now, Take-Two argues that summary judgment should be granted in its favor because its use of the tattoos was fair, authorized, and in any event de minimis, pointing to a 2020 summary judgment decision from the Southern District of New York in a case against Take-Two by a tattoo artist disputing the same central question.

Take-Two first contends that the fair use factors tilt in its favor. For example, and considering the purpose of and character of the use, Take-Two utilizes the contested tattoos for a different, transformative purpose. “Whereas Plaintiff’s purpose was to adorn the NBA Players’ bodies with their self-expression, Take-Two’s purpose was to accurately portray the players,” the motion for summary judgment says.

As to authorization, the filing points to testimony from the players, like an explanation from James stating, “my tattoos are part of my body and my likeness, and I have the right to have my tattoos visible when people or companies depict what I look like.” Fatal is the fact that the plaintiff did not enter into a written or oral contract with the NBA players disclosing that the tattoos could be used only with his future permission, the reply points out.

Lastly, the brief says that the de minimis question, whether Take-Two’s use was so little as to be negligible, is a legal one that the court can answer based on the undisputed facts. As previously reported, Take-Two’s expert is allowed to testify that they are depicted at approximately 1-10% of their real size and comprise, at most, 0.00515% of the game’s data. In addition, the defendant points out that they do not always appear in the game and are surrounded by other visual elements.

The tattoo artist is represented by Calfee, Halter & Griswold LLP and Take-Two by Kirkland & Ellis LLP and McDonald Hopkins LLC.