A ruling has been made in the lawsuit filed against NBA 2K publisher Take-Two Interactive over the use of tattoos in the video game series.
U.S. District Court Judge Laura Taylor Swain ruled in favor of the developer Thursday, stating that Take-Two had an implied license to use the tattoos through its agreements with the NBA, according to Eriq Gardner of the Hollywood Reporter. How infrequently the tattoos appeared in the game also factored into Swain's decision.
"The tattoos only appear on the players upon whom they are inked, which is just three out of over 400 available players," Swain wrote. "The undisputed factual record shows that average gameplay is unlikely to include the players with the tattoos and that, even when such players are included, the display of the tattoos is small and indistinct, appearing as rapidly moving visual features of rapidly moving figures in groups of player figures. Furthermore, the tattoos are not featured on any of the game's marketing materials."
Swain went on to say that Take-Two's use of the tattoos is "transformative."
"First, while NBA 2K features exact copies of the tattoo designs, its purpose in displaying the tattoos is entirely different from the purpose for which the tattoos were originally created," she wrote. "The tattoos were originally created as a means for the players to express themselves through body art. Defendants reproduced the tattoos in the video game in order to most accurately depict the players, and the particulars of the tattoos are not observable."