NEW YORK, March 30 (Reuters) - A federal judge on Friday rejected a request by the maker of the popular NBA 2K video game series to dismiss a lawsuit over its depiction in the game of tattoos belonging to LeBron James and other National Basketball Association stars.
U.S. District Judge Laura Taylor Swain in Manhattan said she needed a better understanding of how Take-Two Interactive Software Inc’s flagship game is “generally played,” before deciding whether its “realistic” depiction of tattoos licensed by Solid Oak Sketches LLC amounted to fair use.
Solid Oak is seeking damages for the depiction of tattoos belonging to James, Eric Bledsoe and Kenyon Martin, for which it owns copyright registrations.
Take-Two has countered that gamers see the tattoos only “fleetingly,” and that it was fair to depict NBA stars as they are in real life, in the proper context.
Neither Take-Two nor its lawyers immediately responded to requests for comment. The New York-based company has said it does not comment on legal matters.
“The judge got it right,” Darren Heitner, a lawyer for Solid Oak, said. “It absolutely would have been premature to rule in the opposite fashion, and we look forward to proceeding with the case.”
Swain said that before deciding whether Take-Two committed copyright infringement, she wanted to know how the “average lay observer” would see the tattoos while playing the game, and how prominent the tattoos actually were.
“The visibility and prominence of the tattoos on screen are affected by countless possible game permutations that are dependent on individual players’ choices,” Swain wrote.
Grand Theft Auto is among Take-Two’s other franchises.
The case is Solid Oak Sketches LLC v. Visual Concepts LLC et al, U.S. District Court, Southern District of New York, No. 16-00724. (Reporting by Jonathan Stempel; Editing by Sandra Maler)