Category Archives:Copyright Law

Tattoo artist files copyright lawsuit over use of Lebron James’ Tattoos in Video Game

Recently, a lawsuit was filed by Solid Oak Sketches, LLC (“Plaintiff”) against various companies responsible for creating the “NBA 2K” video game.[1] The Complaint alleges that the Defendants are liable for copyright infringement over the use of tattoos of professional basketball players in Defendants’ “NBA 2K16” video game.[2] The dispute is over tattoos done by artists on various professional basketball players, such as LeBron James, Kobe Bryant, and DeAndre Jordan.[3]  Plaintiff alleges that it is the owner of the copyrights in such tattoo designs as a result of license agreements with the individual artists.[4]

The Complaint alleges that the tattoo designs are subject to copyright protection, specifically as a “pictorial, graphic, and sculptural work.”[5] The Complaint also notes that whether tattoo designs are subject to copyright protection is a novel issue, yet to be determined by the courts.[6] As discussed in previous blog articles, whether copyright protection exists in “pictorial, graphic, and sculptural works” can be a complicated determination.[7] The Complaint seeks injunctive relief and damages, alleging that the use of the tattoos enhanced the value of Defendants’ video games.[8]

This lawsuit raises interesting questions such as whether tattoo designs are subject to copyright protection, and if so, who owns the copyright. A decision in favor of the Plaintiff could significantly alter the scope of obtaining licensing rights and the use of the name and likeness of professional athletes in video games and other media.

Please contact our office if you have any questions regarding the information in this article.

Daniel Devine, Esq.
Santucci Priore, P.L.
Shareholder

[1] See, Solid Oak Sketches, LLC v. Visual Concepts, LLC, et. al., Case No. 16-CV-00724 (S.D.N.Y. Feb. 1, 2016).
[2] Id.
[3] Id.
[4] Id.
[5] Id.
[6] Id.
[7] See, “Sixth Circuit finds that designs on Cheerleader Uniforms can be copyrighted.”
[8] See, Solid Oak Sketches, LLC v. Visual Concepts, LLC, et. al., Case No. 16-CV-00724 (S.D.N.Y. Feb. 1, 2016).

Supreme Court to review standard for awarding attorneys’ fees in copyright cases

On January 15, 2016, the Supreme Court agreed to hear a case which requests that the Supreme Court determine the proper standard for attorneys’ fees awards in copyright cases.[1] The party requesting review by the Supreme Court, Kirstsaneg (“Petitioner”) prevailed against Respondent, John Wiley & Sons, Inc. (“Respondent”), who had sued the Petitioner for copyright infringement as a result of allegations that the Petitioner had purchased Respondent’s textbooks and then resold them without authorization.[2] Petitioner prevailed under the “first sale” doctrine which was found to be a complete defense to Respondent’s claims.[3] Having prevailed, Petitioner sought attorneys’ fees in the United States Court of Appeals for the Second Circuit, but his request was denied.[4] Generally, the Copyright Act provides a court with discretion to award a prevailing party its reasonable attorneys’ fees.[5]

In Petitioner’s petition for writ of certiorari requesting for the Supreme Court to hear his case, Petitioner alleges there is a split in the different Federal Circuit Courts regarding the standard for awarding attorneys’ fees in copyright cases.[6] Specifically, Petitioner alleges that had his request for attorneys’ fees been heard in a different circuit, such as the Ninth or Eleventh Circuits he would have definitely prevailed.[7] Petitioner also claims that he likely would have prevailed in the Third, Fourth, Fifth, Sixth or Seventh Circuits as well.[8] The difference between the Second Circuit and the other Circuits mentioned above, according to Petitioner, is that the Second Circuit “places ‘substantial weight’ on whether the losing party’s claim or defense was objectively unreasonable.”[9]

The Supreme Court recently addressed the standard for awarding attorneys’ fees under the Patent Act in Octane Fitness, LLC v. ICON Health & Fitness, Inc., 134 S. Ct. 1749 (2014). However, as the Petitioner points out, the standards under the Patent and Copyright Acts are different.[10] A decision by the Supreme Court determining the proper standard for attorneys’ fees would have a significant impact. As evidenced by the Supreme Court’s recent decision regarding attorneys’ fee award under the Patent Act, it does not appear that the Supreme Court is hesitant to make such a definitive ruling. We will be monitoring the status of this case over the next several months.

Please contact our office if you have any questions regarding the information in this article.

Daniel Devine, Esq.
Santucci Priore, P.L.
Shareholder

[1] See, Kirtsaeng v. John Wiley & Sons, Inc., 2016 WL 205944 (Jan. 15, 2016).
[2] See, http://www.scotusblog.com/wp-content/uploads/2016/01/Kirtsaeng-Cert-Petition.pdf
[3] Id.
[4] Id.
[5] See, 17 U.S.C. § 505.
[6] See, http://www.scotusblog.com/wp-content/uploads/2016/01/Kirtsaeng-Cert-Petition.pdf
[7] Id.
[8] Id.
[9] Id.
[10] Id.

Photographer seeks to dismiss “Monkey Selfie” copyright lawsuit

We previously wrote a blog entry on whether copyright protection could be obtained for a “Selfie”. A novel question of copyright law was raised in that blog entry regarding the ability of an Indonesian crested macaque, a type of monkey, to obtain copyright protection in photographs taken by the macaque. Earlier this year a lawsuit was filed by People for The Ethical Treatment of Animals, Inc. (“PETA”), on behalf of the macaque, seeking copyright protection for the photographs.[1] In 2011, the macaque took several photographs of itself with a camera left unattended by photographer and defendant, David John Slater.[2] The photographs included a “Selfie” which has now become known as the “Monkey Selfie.”[3] Mr. Slater allegedly later reproduced the photographs in a book claiming that he was the author of the photographs.[4]

Although the Copyright Act provides that an author of a copyright must be a human being, the lawsuit alleges that authorship under the Copyright Act “is sufficiently broad so as to permit the protections of the law to extend to any original work,” including one created by the macaque.[5] Further, the lawsuit alleges that the photographs were taken by the macaque unaided and that the macaque deliberately used the shutter release button of the camera in order to take the photographs.[6] The lawsuit is seeking for a declaration that the macaque is the owner of the copyright in the photographs and that Defendants have committed copyright infringement.[7] If the requested relief is granted the lawsuit seeks an Order allowing PETA to administer the macaque’s rights in the photographs and that all proceeds from the sale or licensing of the photographs be used solely for the benefit of the macaque, which is part of a “critically endangered” species.[8]

The Defendants recently filed documents seeking to dismiss the lawsuit. The Defendants’ motion to dismiss alleges that the lawsuit should be dismissed because the macaque lacks standing to bring a lawsuit for copyright infringement since the Copyright Act only contemplates protection for human beings and the macaque cannot suffer a concrete injury.[9] The issue of whether an animal can be an author of a work subject to copyright protection appears to be a novel one. Further, even if the macaque is not entitled to copyright protection for the photographs, since the macaque allegedly took the photographs independently, copyright protection may not be available for the Defendants. If the Court decides that copyright protection is not available to either party the photographs will become part of the public domain and will be freely accessible to the public without the requirement to obtain a license. Please contact our office if you have any questions regarding the information in this article.

Daniel Devine, Esq.
Santucci Priore, P.L.
Shareholder

[1] See, Naruto by and through his Next Friends, People for the Ethical Treatment of Animals, Inc., et. al. v. David John Slater, et. al., Case No. 15-cv-4324 at Docket Entry 1 (N.D. Cal. Sept. 21, 2015).
[2] Id.
[3] Id.
[4] Id.
[5] Id.
[6] Id.
[7] Id.
[8] Id.
[9] See, Naruto by and through his Next Friends, People for the Ethical Treatment of Animals, Inc., et. al. v. David John Slater, et. al., Case No. 15-cv-4324 at Docket Entry 24-28 (N.D. Cal. Nov. 6, 2015).