The US District Court for the Southern District of New York has ruled in an interesting lawsuit which regards the question to what extent the likeness of people with tattoos can be used for creation of avatars for video games.
In the case at hand, the likenesses of three NBA players, Eric Bledsoe, LeBron James, and Kenyon Martin, were used for avatars in a basketball video game.
The copyright holder of the tattoos Solid Oak considered this as illegal because there was no a license for the use of the tattoos in the video game.
The court disagreed. The main arguments for this conclusion were:
- Solid Oak acquired the copyrights over the tattoos after they were put on the basketball players not before that.
- According to the US law, de minimis copyright infringements are not actionable. In this case, the tattoos are visible in the game only up to 11% of their real life size. Moreover, in most of the time they are not recognizable.
- According to the court, there were implied non-exclusive licences between the tattoo artists and the three basketball players. With these licenses the players were been given the right to use the tattoos as part of their own likenesses in public places, for commercial purposes etc.
- There were no limitations by the tattoos artist on how the tattoos to be used in the future.