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Court Manages To Get NBA2K Tattoo Copyright, Trademark Case Exactly Right

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Somehow, it's been nearly four years since a tattoo company, Solid Oak Sketches, decided to sue 2K Sports, the studio behind the renowned NBA 2K franchise, claiming that the game's faithful representation of several stars' tattoos was copyright infringement. The company claimed to own the copyright on the design of several players' tattoos, including most famously LeBron James, Kobe Bryant, and DeAndre Jordan. The claim in the suit was that 2K's faithful depiction of the players, whom had collectively licensed their likenesses via the NBAPA, somehow violated Solid Oak's IP rights.Put another way, it could be said that by branding the player with Solid Oak's designs, the company seems to think it can control the players' ability to profit off of their own likenesses. That this draws the mind to very uncomfortable historical parallels apparently was of no issue to Solid Oak.Well, while 2K Sports failed to get the court to dismiss the case back in 2018, it has more recently won the case on summary judgement, with the court quite helpfully getting everything right and declaring the depiction of tattoos in video games in this manner to be Fair Use.

The defendants have sought to dismiss the plaintiff’s complaint because “Plaintiff cannot prove its claim because Defendants’ use of the Tattoos is de minimis and Plaintiff is this unable to prove the key substantial similarity element of its cause of action.” They state their use of the tattoos and images “was pursuant to implied authorization granted prior to Plaintiff’s acquisition of any rights in the Tattoos.”The court has granted the summary judgment dismissing the infringement claim because “no reasonable trier of fact could find the Tattoos as they appear in NBA 2K to be substantially similar to the Tattoo designs licensed to Solid Oak.” Additionally, the tattoos “only appear on the players upon whom they are inked, which is just three out of over 400 players.” Therefore, the odds are against one of those Players with their tattoos being selected. Additionally, because Defendants had a license for the game, they had implied license for the tattoos as part of the players’ likeness and the Players allowed Defendants to use their likeness.
The full filing, embedded below, goes into far more detail. And, frankly, it's quite nice to see a court get this so right. It's clear the court in this case took care and time to go through the material brought by both parties and carefully weigh the claims against Fair Use. Given such careful examination, the conclusions were fairly obvious. In addition to the rationale above, the court notes that the tattoo artists in this case, despite claiming copyright infringement for the de minimis reproduction of tattoos in the game, couldn't even reproduce them themselves given the likeness rights of the players.
Solid Oak has neither licensed the Tattoo designs nor sold merchandise depicting the Tattoos. (Def. 56.1 ¶¶ 107-08.) Solid Oak’s owner, Matthew Siegler, testified that he would “need permission from the players . . . to not infringe on their right of publicity,” in order to move forward with a business selling “dry wick apparel” bearing the Players’ tattoos. (Cendali Decl., Ex. A at 389.) Solid Oak does not have a license to use the Players’ publicity or trademark rights. (Def 56.1 ¶ 102.) Solid Oak has not proffered any evidence indicating that it has a prospect of obtaining such rights.
And so ends one of the most annoying video game IP lawsuits of all time. The shame of it, really, is that it took the system four years to reach the only logical conclusion: someone getting a tattoo doesn't somehow destroy their ability to profit off of their own likeness.

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posted at: 12:00am on 02-Apr-2020
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Security And Privacy In A Brave New Work From Home World

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We have moved to a radically remote posture, leaving a lot of empty real-estate in corporateoffices and abandoning the final protections of the digital perimeter. For years, we've heard thatthe perimeter is dead and there are no borders in cyberspace. We have even had promises ofa new and better style of working without being bound to a physical office and the tyranny andwaste of the commute. However, much like the promise of less travel in a digital age or even thetotal paperless office these work-life aspirations never had a chance to materialize beforeCOVID-19 forced us to disperse and connect over the Internet. This has massive implicationson corporate culture and productivity. More immediately, the surge in use of remote workcapabilities has consequences from a security and privacy perspective that cannot be ignored.For some, working from home isn't new. This is especially true for those in sales and fieldmarketing across many industries or for knowledge workers, such as federal governmentemployees that are familiar with their telecommuting contract. The day after the stay homeorder is given, the rest of the company suddenly find themselves doing the math on how to stayproductive, whether they are the 20% of largely general and administrative or management staffwho are always in the office for a young tech startup or the 80% of all employees at a big bluechip company. Some already have a laptop that they bring with them everywhere and are usedto bringing home, but for others it's time to spark up the family computer or get a hastily issuedcompany laptop and try to get it running without an IT technician parked at their elbow to help.Others will grab a tablet or a smartphone, once relegated to mostly personal use, and repurposeit to attend to professional needs. Any way you look at it, the enterprise footprint just grew andradically changed in a 24 hour period.From a security perspective, the basics are critical. This is true whether a company is a maturesecurity shop or notrisk management is the lodestar. It starts with a risk analysis and dialog.You'll need to first create a master list of security essentials and rank them in order ofsensitivity, likelihood and impact. The reality is that you can do anything, but you can't doeverything; and ultimately this is a triage game.High on the list are concerns about misinformation, weaponized information and socialengineering. While companies can't control machines that they don't own, they have to try to getthe most secure endpoints they can and ensure identity integrity. This means emphasizing whatchannels are appropriate or not for employees and their families for information: news networks,websites and the like. But COVID-19 is our new common watering hole, and malicious actorsare manufacturing phishing attacks, devilish spear-phishing campaigns, rogue applications andmore. Regular, short, routine communications to remind people of the basics, to gain a pulse onthe organization and to provide clear policies are essential.Also at the highest level of concern is securing the connection to the network and back into theenvironment. This requires VPN connections, strong authentication and endpoint preventionand detection controls. In the back office generally and in the security operations centerspecifically, baselines from which anomalies are normally noted for focus will be in flux;everything will look like an anomaly for a while in the brave new remote world.Which brings us to the most difficult of topics: privacy.Did employees bring notes and data home before the office closure? Are they creating IP anddata protected by privacy laws and regulations as they continue to do business? Who is in theimmediate environment physically? These are some of the critical questions. In some cases youmay never know the answers to these questions or you may not have a right to know theanswers but must appreciate others' living situations and assume some worst case scenarios.There are still more questions. Should cameras be on for conference calls when employeesmight be embarrassed of their personal space being seen by colleagues? Should they useheadsets when a life partner might work for another company or even a competitor or perhaps aroommate might simply overhear sensitive information? Do we encourage them to care for achild when they are crying or do workers feel the need to hide their families? While manycompanies have previously developed work from home policies now we are beginning tounderstand what is really needed for remote, working employees. Now is the time to take afresh look at privacy in your work from home policy.Finally, we must understand the adversary is moving into a new normal as well. They may notbe able to immediately exploit all weaknesses or even any given weakness. They too willpursue the lowest hanging fruit while investing in some longer term R&D to develop new attacksspecifically for the home environment. Threat actors may be purchasing tools fromcybercriminals, mining existing botnets to see what IP is on those already-compromisedmachines or targeting home automation, printers and routers after triangulating IP addressesand digital locations for targets. In the weeks ahead, targeting new dimensions of technicaldiversity and innovating to develop new attack vectors will be the name of the game for the badguys.The future is very much a moving target for security and privacy professionals. Here is wherethe ongoing maintenance on an ongoing basis is critical: watching vulnerabilities in the newbattery of enterprise applications for remote productivity, moving to the next order ofvulnerabilities and so on. This might involve extending IT support and patching advice to homeusers on how to secure their home network, how to configure Amazon or Alexa devices or newtools and services for secure note-taking, collaboration, use of newly available standardoperating environment systems and so on. In short, the game of security and privacy will beabout rates of adaptation between asymmetric opponents.The brave new work from home world would be best if it was short lived, but the genie won't goback in the bottle. While the economy will adapt and move on at some point, it's too early to tellwhat percentage of current remote workers will continue to work from home permanently in apost COVID-19 world or if we will return to the tyranny of the commute. Regardless, the lastingeffect of innovation on both attack and defense will persist. As has been said, never waste agood crisis: let's hope that IT, corporate culture, security and privacy all benefit from the currentsituation to make a more productive and humane cyber world when we return to a more normalepidemiological world.Sam Curry is Chief Product and Security Officer at Cybereason.
Ari Schwartz was Special Assistant to President Obama for Cybersecurity and Is ManagingDirector for Cybersecurity Services at Venable.


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posted at: 12:00am on 02-Apr-2020
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