In 2016 in the United States, a company[2] brought legal proceedings against the publishers of NBA video games, alleging copyright infringement due to the reproduction of said tattoos within the game (on the players’ “avatars”).
The issues raised by this case, which the US judge had to address, were numerous:
The publishers of the NBA 2K video game cited several defences, including:
On these grounds, the copyright infringement claim was dismissed by the New York District Court [3].
Could this ruling be applied and upheld by French courts?
Under French law, for a work to be eligible for copyright protection, it must be original. The Paris Court of Appeal has, in the past, found a record company liable for reproducing tattoos on various media without obtaining the tattoo artist’s permission[4].
US judges, for their part, examined the originality of the tattoo designs and concluded that the tattoos in question, whilst eligible for protection, were not sufficiently creative to allow the exceptions invoked to be set aside.
French copyright law does not recognise the same conditions of protection, the same regime or the same exceptions (exceptions mentioned above do not exist as such in French law).
In a similar context in France, several areas for consideration could be explored:
[1] A series of basketball video games published by American companies 2K Games Inc and Take-Two Interactive Software Inc
[2] US company Solid Oak Sketches (a copyright management company representing several tattoo artists)
[3] Solid Oak Sketches, LLC v. 2K Games, Inc., (26 March 2020)
[4] Article L.113-5 of the French Intellectual Property Code
[5] Paris Court of Appeal – 3 July 1998 – No. 97/00183
