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Solid Oak Sketches, LLC v. 2K Games, Inc.

United States District Court, S.D. New York

March 30, 2018

SOLID OAK SKETCHES, LLC, Plaintiff-Counterdefendant,
v.
2K GAMES, INC. and TAKE-TWO INTERACTIVE SOFTWARE, INC., Defendants-Counterclaimants.

          MEMORANDUM OPINION AND ORDER

         Solid Oak Sketches, LLC (“Solid Oak” or “Plaintiff”), brings this action against Defendants 2K Games, Inc., and Take-Two Interactive Software (collectively, “Take Two” or “Defendants”), asserting a claim of copyright infringement pursuant to the Copyright Act of 1976, 17 U.S.C. § 101 et seq. (the “Copyright Act”). Following this Court's granting of Defendants' motion to dismiss Plaintiff's claims for statutory damages and attorneys' fees on August 2, 2016, Plaintiff filed a Second Amended Complaint (“SAC”) on October 24, 2016. (Docket Entry No. 55.) On August 16, 2016, Defendants filed counterclaims for declaratory judgment pursuant to the Copyright Act and the Declaratory Judgment Act, 28 U.S.C. §§ 2201-2202 (“Defs.' Countercl.”). (Docket Entry No. 47.) The Court denied Plaintiff's motion to dismiss the counterclaims on May 16, 2017. (Docket Entry No. 64.)

         The Court has jurisdiction of this action pursuant to 28 U.S.C. §§ 1331 and 1338.

         Defendants now move for judgment on the pleadings pursuant to Federal Rule of Civil Procedure 12(c), requesting an order dismissing Plaintiff's copyright infringement claim and entry of judgment in Defendants' favor on their counterclaims for declaratory judgments of de minimis use and fair use. (Docket Entry No. 76.) The Court has considered carefully the parties' submissions in connection with the motion. For the following reasons, Defendants' motion is denied.

         Background

         The Court assumes the parties' familiarity with the allegations of the SAC, which have been detailed in prior decisions of the Court, including the August 2, 2016, Memorandum Opinion and Order and the May 16, 2017, Memorandum Order. (See Docket Entry Nos. 55 and 64.) The following recitation of relevant facts is derived from the allegations in the SAC and the Defendants' Counterclaims, the well-pleaded factual content of which is taken as true for purposes of this motion. The following facts are undisputed.

         Take-Two is a major developer, publisher, and marketer of interactive entertainment and video games that develops and publishes products through its wholly-owned subsidiaries, 2K and Rockstar Games. (SAC ¶¶ 17-18.) Defendants annually release an updated basketball simulation video game that depicts basketball with realistic renderings of different NBA teams, including lifelike depictions of NBA players and their tattoos. (Defs.' Countercl. ¶¶ 8, 141.) The game has “many components, including graphics, characters, a fictitious plot, gameplay, music, and graphics.” (Id. ¶ 198.) Solid Oak owns the copyright registrations for five tattoos that are depicted realistically in the game on NBA players Eric Bledsoe, LeBron James, and Kenyon Martin (the “Tattoos”). (See SAC ¶ 32-36; Defs.' Countercl. ¶¶ 142, 153.) Plaintiff alleges that Defendants have infringed its copyrights by publicly displaying Plaintiff's copyrighted works in versions 2K14, 2K15, and 2K16 (released in 2013, 2014, and 2015, respectively) of their basketball simulation video game. (SAC ¶¶ 9-11.)

         Defendants have filed counterclaims for a declaratory judgment that its depictions of the disputed tattoos constitute de minimis use (Defs.' Countercl. ¶¶ 197-208) and fair use (id. ¶¶ 209-27). Defendants also seek a declaratory judgment that the copyright registration for Plaintiff's “Lion's Head Tattoo Artwork” is invalid and an order directing cancellation of that registration, though they have not requested the Court enter judgment on that counterclaim in the current motion practice. (Id. ¶¶ 228-35.)

         Discussion

          “The standard for granting a Rule 12(c) motion for judgment on the pleadings is identical to that of a Rule 12(b)(6) motion for failure to state a claim.” Patel v. Contemporary Classics of Beverly Hills, 259 F.3d 123, 126 (2d Cir. 2001) (citation omitted). “To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.'” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A proper complaint cannot simply recite legal conclusions or bare elements of a cause of action; it must plead factual content that “allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 678 (citing Twombly, 550 U.S. at 556(.

         “In order to establish a claim of copyright infringement, ‘a plaintiff with a valid copyright must demonstrate that: (1) the defendant has actually copied the plaintiff's work; and (2) the copying is illegal because a substantial similarity exists between the defendant's work and the protectible elements of plaintiff's.'” Peter F. Gaito Architecture, LLC v. Simone Dev. Corp., 602 F.3d 57, 63 (2d Cir. 2010) (quoting Hamil Am. Inc. v. GFI, 193 F.3d 92, 99 (2d Cir.1999)). The “substantial similarity test” is whether “an average lay observer would recognize the alleged copy as having been appropriated from the copyrighted work.” Knitwaves, Inc. v. Lollytogs Ltd. (Inc.), 71 F.3d 996, 1002 (2d Cir. 1995) (quotation marks omitted) (citing Malden Mills, Inc. v. Regency Mills, Inc., 626 F.2d 1112, 1113 (2d Cir. 1980)).

         Determining substantial similarity is “one of the most difficult questions in copyright law, and one that is the least susceptible of helpful generalizations.” Peter F. Gaito Architecture, LLC v. Simone Development Corp., 602 F.3d 57, 63 (2d Cir. 2010) (citation omitted). A court may “consider the similarity between [two] works in connection with a motion to dismiss, because the court has before it all that is necessary in order to make such an evaluation[, ]” and “[i]f, in making that evaluation, the district court determines that the two works are not substantially similar as a matter of law, ” a “court can properly conclude that the plaintiff's complaint, together with the works incorporated therein, do not plausibly give rise to an entitlement to relief.” Id. at 64 (quotation marks and citation omitted). The Second Circuit has “acknowledge[d] that there can be certain instances of alleged copyright infringement where the question of substantial similarity cannot be addressed without the aid of discovery or expert testimony.” Id. at 65 (noting that the trier of fact need not always be “limited by the strictures of its own lay perspective”) (internal citations omitted). In such cases, resolution at the pleadings stage would be premature. See id.

         De Minimis Use

         Defendants assert that Plaintiff cannot establish substantial similarity because their use of the Tattoos is de minimis. (See Memorandum of Law in Support of Defendants-Counterclaimants 2K Games, Inc. and Take-Two Interactive Software, Inc.'s Motion for Judgment on the Pleadings (“Defs. Opening Br.”), Docket Entry No. 77, at 10-13.) Plaintiff asserts that this is an inappropriate stage of the proceedings at which to consider whether Plaintiff's use of the Tattoos is de minimis and that Defendants have failed to establish that their use is de minimis as a matter of law. (See Memorandum of Law in Support of Plaintiff's Response to Defendants' Motion for Judgment on the Pleadings (“Pl. Opp. Br.”), Docket Entry No. 88, at 15-19.)

         To be substantially similar, the amount copied must be more than de minimis. Castle Rock Entm't, Inc. v. Carol Publ'g Grp, Inc., 150 F.3d 132, 138 (2d Cir. 1998) (citing Ringgold v. Black Entertainment Television, Inc., 126 F.3d 70, 75 (2d Cir. 1997)). Although de minimis may mean in certain copyright contexts “a technical violation of a right so trivial that the law will not impose legal consequences, ” when factual copying is not in dispute, the de minimis analysis focuses on “whether the ...


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