Federal court says
Tattoo artist has no claim
To tats shown in game
A federal district court in Ohio has rejected an attempt by a tattoo artist to reinstate his case against video game company Take-Two.
The artist claimed that the company infringed his copyright in tattoos worn by basketball star LeBron James.
Take-Two makes video games such as the basketball simulation series “NBA 2K.”
As the opinion notes, James Hayden, the tattoo artist, has inked tattoos on James since 2003. In 2007 and 2008, he inked two tattoos on James (“Gloria” [James’s mother’s name] and “Shoulder Stars”). Hayden obtained copyright registrations for the tattoo designs.
Six Take-Two games show James with these tattoos.
In April of 2024, a jury unanimously found that Take-Two had not infringed the tattoo copyrights. Hayden moved for a new trial, contending that there was no legally sufficient evidentiary basis for the jury to conclude that he intended to grant a license allowing Take-Two’s copying of the tattoos in its games.
Hayden insisted that he had no knowledge of Take-Two’s NBA games when he inked the tattoos, and thus he could not have intended to grant an implied license for video game use.
However, said the court, NBA players, including James, expressly gave the NBA and the NBA Players Association the right to license their likenesses. In turn, those organizations had an agreement to license to Take-Two.
The jury heard testimony that James had appeared in NBA 2K games for years before he was inked by Hayden. The court also noted that Hayden was a basketball fan who had inked other NBA players, such as Shaquille O’Neal and Kyrie Irving, who appeared in the video games.
Hayden admitted that he’d never discussed with James the need to get his permission to let someone reproduce James’s likeness, including the tattoos.
The instructions to the jury included the following:
An implied license is an unwritten license to use a work that is inferred from the circumstances and the conduct between the parties.
The court found that the jury had a legally sufficient evidentiary basis to find that Take-Two prevailed on its defense of Implied License.
In a story by Reuters, Take-Two’s attorney said that the decision was important for the entertainment industry and “anyone who has ever gotten a tattoo and might have otherwise worried about their freedom to share their bodies with their tattoos.”
In 2020, as Reuters reported, Take-Two previously defeated a tattoo-based copyright infringement claim in a New York Federal Court. This case included designs inked on James by a different artist.
In the 2020 decision in favor of Take-Two, the judge noted that
The Tattoos only appear on the players upon whom they are inked, which is just three out of over 400 available players. The undisputed factual record shows that average game play is unlikely to include the players with the Tattoos and that, even when such players are included, the display of the Tattoos is small and indistinct, appearing as rapidly moving visual features of rapidly moving figures in groups of player figures. Furthermore, the Tattoos are not featured on any of the game’s marketing materials.
However, a federal jury in Illinois awarded another tattoo artist $3,750 in damages in 2022, in a case involving tattoos on the avatar of WWE wrestler Randy Orton in Take-Two’s games WWE 2K16, 2K17, and 2K18.
As Reuters reported, the jury in the Illinois case rejected Take-Two’s copyright defense of fair use. But the jury also declined to award the artist any profits from the game that she claimed were due to her artwork.
questions … have been circulating in legal circles ever since one tattoo artist once sued and settled with Warner Bros. over The Hangover Part II over a reproduction of Mike Tyson’s face tattoo.
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