Fair Use & Tater Tots

Written by Timothy M. Carter In 2011, Plaintiffs Tamita Brown, Glen S. Chapman, and Jason T. Chapman composed and recorded the children’s song Fish Sticks n’ Tater Tots (the “Song”), which details a student’s journey from her classroom to her school cafeteria to eat fish sticks and tater tots for lunch.[1]  Six years later, the documentary film Burlesque: Heart of the Glitter Tribe (the “Film”) — which … Continue reading Fair Use & Tater Tots

A De Minimis Defense Grows in Brooklyn: Display of Street Art in Action Movie Not Infringement

Written by Eleanor M. Lackman and Theresa B. Bowman 

On March 30, 2020, in Blaney, et al., v. XYZ Films, et al., the U.S. District Court for the Eastern District of New York dismissed copyright infringement and false endorsement claims arising out of the depiction of a well-known Brooklyn mural in the dystopian, thriller motion picture Bushwick.  While the defendants undeniably filmed, and thus reproduced, the mural in the motion picture, the court held that such copying was both de minimis and fair use and therefore not copyright infringement.  In dismissing the false endorsement claims, the court determined that the defendants’ use of the mural created little risk of confusion that the murals’ creator and subject, both peace activists, endorsed the defendants’ motion picture.

The decision bolsters the ability of movie and TV production companies to depict, accurately and briefly, iconic or well-known community sites as part of background “establishing shots.”  Meanwhile, the outcome might inject some uncertainty into whether artists can pursue licensing revenue for works depicted in those films and TV shows.

Continue reading “A De Minimis Defense Grows in Brooklyn: Display of Street Art in Action Movie Not Infringement”

Court Sides With Video Game Producer Over The Use Of Athlete’s Tattoos

Written by Sofia Castillo

On March 26, 2020, the district court for the Southern District of New York issued a landmark ruling in a case closely followed by the film, video game, sports and tattoo industries. Where for several years the only direct precedent on the issue of expressive tattoos in expressive works was limited to early rulings in cases like that involving The Hangover or relegated to settlements, Solid Oak Sketches, LLC v. 2K Games, Inc. firmly resolved all doubt. In the ruling, the court granted the defendant video game publishers’ motion for summary judgment on three separate grounds, finding that the defendants’ depiction of basketball superstars’ tattoos in a “NBA2K” video game was: (1) a “de minimis” use, (2) allowed under the players’ implied license given by the tattoo artists, and (3) a fair use. This decision comes almost exactly two years after Judge Swain denied the defendants’ motion to dismiss the claims.

On the first ground, the court looked to precedent regarding “de minimis” use principles in other contexts. Ultimately, the defendants’ video evidence convinced the court that NBA2K’s depiction of tattoos on basketball superstars LeBron James, Kenyon Martin and Eric Bledsoe (and none of the other over 400 available players in the game) was “de minimis” and therefore “no reasonable trier of fact could find the Tattoos as they appear in NBA 2K were substantially similar to the Tattoo designs licensed to Solid Oak.” The court found that the small size and distorted angles of the tattoos’ display as part of the game play was “indiscernible to the average game user,” making the plaintiff’s copyright expression insufficiently observable to rise to the level of an actionable taking. Continue reading “Court Sides With Video Game Producer Over The Use Of Athlete’s Tattoos”