Judge Laura Taylor Swain recently denied a motion for judgment on the pleadings filed by Take-Two Interactive Software, Inc., a video game developer, publisher, and marketer, and its wholly-owned subsidiary, 2K Games, Inc. (together “Take-Two”). The lawsuit accuses Take-Two of committing copyright infringement due to its use of various tattoos (registered with the U.S. Copyright Office), in a popular series of basketball simulation video games. The tattoos at issue, in this case, are displayed on LeBron James, Eric Bledsoe and Kenyon Martin, all of whom are inked with these same tattoos in real life.

Take-Two’s motion asserted that the case should be terminated because any use of the tattoos in its video games was de minimis and also qualify as fair use. The Court rejected both arguments at this stage of the litigation and held that it required more information concerning how the games are generally played and how game features are utilized to determine the observability and prominence of the tattoos in the games, factors that must be examined under both of theories.