March 30, 2018 / 6:43 PM / 4 months ago

Lawsuit over LeBron James, NBA stars' tattoos in video games can proceed

NEW YORK (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.

FILE PHOTO: Mar 21, 2018; Cleveland, OH, USA; Cleveland Cavaliers forward LeBron James (23) celebrates a win over the Toronto Raptors at Quicken Loans Arena. Mandatory Credit: David Richard-USA TODAY Sports/File Photo

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.

FILE PHOTO: Feb 27, 2018; Cleveland, OH, USA; Cleveland Cavaliers forward LeBron James (23) drives to the basket in the third quarter against the Brooklyn Nets at Quicken Loans Arena. Mandatory Credit: David Richard-USA TODAY Sports/File Photo

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.

FILE PHOTO: Mar 21, 2018; Cleveland, OH, USA; Toronto Raptors forward Pascal Siakam (43) defends Cleveland Cavaliers forward LeBron James (23) in the first quarter at Quicken Loans Arena. Mandatory Credit: David Richard-USA TODAY Sports/File Photo

“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

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