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2021 Esports and the Law 1 (2021)

handle is hein.hackboth/esprtlw2021 and id is 1 raw text is: Winter 2021 Esports and the Law [ File First, Litigate Later? Procedural Fencing explored in Epic Tech, LLC v. Arno Res., LLC or Race to Res Judicata By Lauryn Robinson, 3L, The George Washington University Law School W`'VTell, when it comes to the Fifth VI/ Circuit, it does not favor races to the courthouse. The parties and predecessors in this case have been engaged in various disputes regarding a gaming software agreement (SoftwareAgreement) since the early 2000s. In August of 2004, Custom Games Design (Games Design) and Gateway Gaming, LLC (Gateway) entered into the Software Agreement. Here, Games Design agreed to develop games and give Gateway a license to use its proprietary software (Software). If Gateway refused to make payments, hire current Games Design employees, or solicit Games Design employees within 180 days of termination, the Software Agreement was terminated. By February of 2017, the original parties to the Software Agreement had dramatically altered. Gateway dissolved in January of 2013 transferring its assets to Epic Tech, LLC; Winter Sky, LLC and Frontier Software Systems, LLC (collectively referred to as Epic Tech). While Gaming Design entered into a licensing agreement with Arno Resources (Arno) granting, conveying and assigning all of its rights, title and interest to Software including the right to bring suit arising out of its misuse. In May of 2013, Arno's legal counsel sent See PROCEDURAL on Page 8 Sports Lawyer Alex S. Taps into aFast-Changing Industry - Esports - With Involvement in ESTA 2 Al's Impact on Video Game Outcomes Frustrates Gainers 3 Cyberpunked! Shareholder Files Class Action Suit Over Bug-Ridden Release in Esports Case 4 Apple Sours on Epic Games in Just a Fortnite 5 Foley's Israel Considers Esports Industry's Legal Trends 6 'Call of Duty' Publishers Sued for Copyright Infringement Esports News Roundup 7 9 Tattoo Suits Trace Out Fair Use Standards in Sport Franchises By Kevin Wenzel, GWU 3L Aruling in the Southern District ofNew ork has elucidated the boundaries of copyright protection when it comes to including professional athletes' tattoos to depict their likeness in video games. Solid Oak Sketches, LLC., a tattoo licensing company, brought a copyright infringement suit in district court against the video game developer Take-Two Interac- tive Software. Take-Two develops, markets, and publishes the popular NBA 2K video game franchise through its wholly owned subsidiary2K Interactive, LLC.. Solid Oak's suit alleges that the 2013, 2014, and 2015 versions of the NBA 2K video game series infringed their copyright by recreating real- istic depictions of tattoos that Solid Oaks holds an exclusive license to. At question are five distinct tattoos on three athletes featured in the games: Lebron James, Eric Bledsoe, and Kenyon Martin. While Solid Oaks has an exclusive license to the tattoos being depicted on these NBA athletes, they do not have a license to use the athletes' publicity or trademark rights. In a decision dated March 26, 2020, the Court took the side of Take-Two, granting their motion for summary judgment on the grounds of de minimis use, implied license, and fair use, and finding that Take-Two's use of the tattoos did not violate Solid Oak's copyright protection. In addressing the de minimus use claim the court examined factors of the amount the copyrighted work was used, the observ- ability of the work within the game, and factors involving focus, lighting, camera angles, and prominence. The court agreed with Take-Two and found that the use of plaintiffs tattoos within the games are used See TATTOO Page 7 COYIH ©22 HAKE PULIATOS (HCNYPBIAIOSCM Route To:

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