A jury rejects claims that a video game maker's use of tattoos in its games infringes the copyright of the artists who created the tattoos, ruling that video game makers are implicitly drawing players' tattoos to resemble themselves. It was determined that he had a license. Hayden vs. 2K Games Inc.Case No. 1:17-cv-02635 (Ohio ND)
Jimmy Hayden is a tattoo artist who has created work for many National Basketball Association (NBA) stars, including LeBron James, Shaquille O'Neal, Kyrie Irving, Danny Green, and Tristan Thompson. In 2017, Hayden was sued by Take-Two, which develops, publishes and sells interactive entertainment and video games, for allegedly drawing copyrighted tattoos of James, Green and Thompson from the popular NBA 2K series. Filed a lawsuit against Interactive Games. In the NBA 2K series, the player can control realistic avatars of over 400 of his NBA players.
In January 2024, a district court dismissed infringement claims regarding four of the six tattoos, but ruled that claims regarding two of James' tattoos could proceed to trial. The jury found that Take-Two's agreement with the NBA and its players' association to use James' likeness included an implied license to depict his tattoos.
Practice notes: The likely issue on appeal will be whether the jury was properly instructed on the implied license doctrine, which infers intent from a party's conduct, and whether it applied that doctrine correctly.
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The lawsuit is the latest in a series of disputes over tattoo artists and the use of their work in video games. In 2020, Take-Two was sued in the U.S. District Court for the Southern District of New York over depictions of tattoos on NBA players, including James, Kenyon Martin, and Eric Bledsoe. In that case, Solid Oak Sketches, Inc. vs. Take-Two Games, Co., Ltd. (499 F.Supp.3d 333 (SDNY 2020)), the district court found that the tattoo on the basketball player did not substantially resemble the actual tattoo and was used by a video game company. , granted Take-Two's motion for summary judgment. It argued that it was within the license given to players to use their likenesses and that the use of copyrighted tattoos in video games was transformative.
In another case, Alexander v. Take-Two Interactive Software, Inc. et al. (Case No. 18-cv-966-SMY, (SD Ill. 2022)), a tattoo artist wins a jury trial over the depiction of professional wrestler Randy Orton's tattoos in Take-Two's WWE 2K video game series. In this case, the jury found that the reproduction of the tattoo was not fair use and awarded Alexander $3,750 in damages, but the small award meant that the profits of the game were not included in the reproduction of the tattoo. This reflected the jury's finding that the crime was not caused.
