Courts Provide Guidance on the Depiction of Real-World Works Including Video Games

Most video games are sold on the photorealism of their graphics and graphics. However, depending on the image, developers and publishers may need to be concerned about the underlying intellectual property rights of the image. Recent court decisions dealing with tattoos and tractors in video games show the growing number of intellectual property cases around real-world designs emerging, even by accident, in the digital world.

Tattoos

In many cases, tattoo artists claim ownership over copyrights to tattoos they create for clients that appear in video games. First, in Solid Oak Sketches, LLC v. 2K Games, Inc.Solid Oak, a tattoo licensing company, sued 2K Games for copyright infringement, alleging that Solid Oak holds an exclusive license to copy five tattoos featured on three players NBA 2K basketball game.1 The court rejected the infringement claims on the basis of three independent elements of copyright protection: de minimis use, implied license, and fair use.2 For a more detailed discussion, see Wilson Sonsini’s earlier warning available Right here.

Fast forward to two years Alexander v. Take-Two Interactive Software, Inc. A tattoo artist has won a copyright infringement suit against Take-Two Interactive Software, Inc.3 Take-Two’s WWE 2K game series featured a real-life image of professional wrestler, Randy Orton, as a patron of tattoo artist Catherine Alexander.4 A jury in Illinois rejected Take-Two’s fair use defense, awarding Alexander monetary damages for actual losses from Take-Two’s infringement of his copyright on tattoos, and the court, in a small summary judgment, denied the verdict. de minimis use and protection of the license which has been successful Solid Oak figures.5

In the light of Alexandersports companies may have to be more careful when displaying copyrighted tattoos and other unexpected designs without permission, even when they take a person’s likeness or likeness.6 The case for this post is ongoing. To the Hayden v. 2K Games, Inc.Tattoo artist James Hayden has been sued over the use of tattoos on basketball players featured in the NBA 2K series.7 The parties are awaiting a trial date.

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Tractors

Vehicle design drawings may raise intellectual property concerns, as shown Saber Interactive Inc. v. Oovee, Ltd.case heard by Washington district court.8 Saber has entered into a licensing agreement with Peterburgsky Traktorny Zavod JSC (PTZ), which gives Saber exclusive intellectual property rights to display the K-700 in Saber games.9 Oovee subsequently released a game showing the vehicle being promoted as using “an obvious K-700-like system,” with a disclaimer that any resemblance to the real-world vehicle is purely coincidental and that the vehicles in the game are fictional “unless licensed.”10

Saber sued Oovee for unfair competition under Section 43(a) of the Lanham Act, unfair competition under the Washington Consumer Protection Act, and unjust enrichment.11 Saber claimed that Oovee’s use of the K-700 design misled consumers into believing that Oovee had a Saber endorsement, but the court rejected this argument.12 The court agreed with Oovee that the video game is a clear work, affording it First Amendment protection.13 This finding means that Saber’s unfair competition claims must succeed Rogers test, established to balance First Amendment protections for technical marks against trademark rights under the Lanham Act in a 1989 Second Circuit decision.14 I Rogers the trial requires Saber to show that Oovee’s use of the K-700 1) was not technically related to Oovee’s game, or 2) grossly misled consumers as to the source of the work.15

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The court found that Saber failed to clearly allege that Oovee’s use of the K-700 mark or trade dress was clearly misleading.16 This finding led the court to dismiss Saber’s unfair competition claims under the Lanham Act and Washington law.17 The court said Oovee did not blatantly mislead its customers about its rights to use the original vehicle design or its relationship with Saber.18 Moreover, Saber’s accusations about “confusion” did not add up Rogers The high bar test is “clearly misleading.”19 Oovee’s use of the K-700 name also fails to meet this prong Rogers The test is that “use of the mark alone” is not sufficient to satisfy.20 The legal battle between Saber and Oovee appears to be far from over. The court granted Saber permission to file an amended complaint, giving it permission to add new pollution and business interruption claims regarding the recent news release from Oovee.

I Saber The ruling is consistent with a New York district court ruling in 2020 regarding Humvee images Call of Dutya video game based on modern warfare.21 The local court also applied Rogers examination and claims of trademark infringement under the Lanham Act and New York state law.22 For a more detailed discussion, see Wilson Sonsini’s earlier warning available Right here.

The above are just a few considerations when producing or working on a video game to create a realistic gaming experience. For more information, please get in touch Chris Paniewski, Aaron Hendelman, or another member of the firm electronic game, technical transactions, or branding and marketing actions.

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[1] Solid Oak Graphics, LLC. v. 2K Games, Inc., 449 F.Supp. 3d 333 (SDNY 2020); Christopher A. Paniewski et al., NY District Court Rules on Product Images and Works in Video GamesWilson Sonsini Client Alert, https://www.wsgr.com/en/insights/ny-district-court-rules-on-depictions-of-products-and-works-in-video-games.html (May 18) , 2020).

[2] Solid Oak Graphics, LLC. v. 2K Games, Inc., 449 F. Supp. 3d 333 (SDNY 2020).

[3] Alexander v. Take-Two Interactive Software, Inc., 489 F.Supp. 3d 812 (S.D. Ill. Sept. 26, 2020).

[4] Id.

[5] Judgment form, Alexander v. Take-Two Interactive Software, Inc.Case No. 3-18-cv-00966-SMY (SD Ill Sept. 30, 2022), ECF No. 298, present https://fingfx.thomsonreuters.com/gfx/legaldocs/lbvgnqbqopq/IP%20WWE%20COPYRIGHT%20verdict.pdf.

[6] Id.

[7] Aaron Perzanowski and Eric Goldman, Jury Awards Ruined Tattoo Artist For Video Game ArtAlexander v. WWE 2K (Guest Blog Post), Technology. & Mktg. Law Blog, https://blog.ericgoldman.org/archives/2022/10/jury-awards-damages-to-tattoo-artist-for-video-game-depiction-alexander-v-wwe-2k-guest-blog -post.htm (Oct. 6, 2022); Complaint, Hayden v. 2K Games, Inc.1:17-cv-02635 (ND Ohio Dec. 18, 2017), ECF No. 1.

[8] Saber Interactive Inc. v. Oovee, Ltd., No. 2:21-cv-01201-JHC, 2022 US Dist. LEXIS 183401 (WD Wash. Oct. 6, 2022).

[9] Id.

[10] Id. with *4.

[11] Id. with *5.

[12] Id. in *14.

[13] Id. with *10.

[14] Rogers v. Grimaldi875 F.2d 994 (2d. Cir. 1989).

[15] Saber Interactive Inc., 2022 US Dist. LEXIS 183401, at *13-14.

[16] Id. with *18.

[17] Id. with *24.

[18] Id. at *14-16.

[19] Id.

[20] Id.

[21] AM Gen. LLC v. Activision Blizzard, Inc., 450 F. Supp. 3d 467 (SDNY 2020).

[22] Id.

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