The original version of this report was published on the biweekly IP briefing Skilled in the Art.

If you're anything like me, you've been in major sports news withdrawal for the last few weeks. But I have a tiny fix from the place where LeBron James, intellectual property and even Harvey Weinstein intersect.

U.S. District Judge Laura Taylor Swain of the Southern District of New York issued Thursday what's believed to be the first written decision to address the application of copyright law to tattoos. Specifically, five tattoos sported by NBA players James, Kenyon Martin and Eric Bledsoe.

After creating the works, tattoo artists Justin Wright, Shawn Rome and Thomas Ray Cornett licensed the intellectual property to a company called Solid Oak Sketches LLC. Solid Oak in turn demanded royalties from Take-Two Interactive Software, which depicts hundreds of players in its NBA 2K series of video games. The NBA and the players license their likenesses to Take-Two.

Take-Two and its Kirkland & Ellis counsel obtained summary judgment on three grounds.

First, the judge held that, despite the overall lifelike experience of NBA 2K, the five tattoos at issue are "indiscernible to the average viewer," observable only as "undefined dark shading" on the arms of three players out of 400. That amount of copying represents unactionable de minimis use, Swain ruled.

Second, any copying of the tattoos are sufficiently transformative that they would qualify for the affirmative defense of fair use. The original purpose of the tattoos is expression through body art, Swain reasoned, while Take-Two had the entirely different purpose of making its game characters recognizable.

(Side note: Take-Two's lead outside counsel on the case, Kirkland partner Dale Cendali, is also co-counsel to Oracle in its fair use battle with Google at the Supreme Court. Could this decision trip up Oracle? Probably not. Swain agreed with Take-Two that the tattoo images are "merely incidental" to the commercial value of the video games. And she found no evidence that a competing market for licensing tattoos is going to develop, "because the Tattoos are imprinted on the bodies of the Players" and they, not Solid Oak, control their publicity rights.)

Finally, Swain ruled that the tattoo artists necessarily granted the players an implied license to use the tattoos as part of their likenesses. The tattoo artists inked the designs onto the players' skin, "each knowing that the Players were likely to appear 'in public, on television, in commercials, or in other forms of media,'" Swain wrote.

Swain cited to The Weinstein  v. Smokewood Entertainment Group, a 2009 district court case in which Harvey Weinstein's film company tried unsuccessfully to claim an implied, nonexclusive license in a film after a distribution deal fell through. The judge in that case noted that implied nonexclusive licenses should be found "only in 'narrow' circumstances where one party 'created a work at [the other's] request and handed it over, intending that [the other] copy and distribute it.'"

That's this case, Swain ruled.

Kirkland's team also featured partner Joshua Simmons.

Solid Oak was represented by Darren Heitner of Heitner Legal and Paul Haberman of The Law Offices of Paul S. Haberman.