When is Your Tattoo Not Really YOUR Tattoo?

By Krista Hiner · Fri, Apr 19, 2024 4:33 PM

This week marks the trial on tattoo artist Jimmy Hayden’s claims of copyright infringement against 2K Games and Take-Two Interactive for including tattoos that were inked by Hayden on LeBron James, Danny Green, and Tristan Thompson in the NBA 2K games on the players’ respective depictions.¹ The case is likely to impact the rights of tattooed individuals to license their own image and likeness to third parties for reproduction in games and other media, because if Hayden’s arguments are successful, then tattooed individuals do not have the absolute right to control how their image and likeness is reproduced and used by others as long as the tattoo is involved.

This is not the first time this question has been litigated, not even with respect to these same defendants or even LeBron James. Several years ago, Solid Oak Sketches, LLC, owner of exclusively licensed tattoo designs, sued 2K Games in the Second Circuit² for including their tattoo designs on the in-game depictions of NBA players Eric Bledsoe, Kenyon Martin, and James. In Solid Oak Sketches, 2K Games pled several affirmative defenses that the court agreed with in its 2020 decision:

1. the original tattoo artists knew and understood that, because these individuals were NBA players, the tattoos would be copied and distributed as part of players’ image and likenesses during professional games, on television, and in other media in which players’ image and likeness appears. Therefore, an implied license was granted, permitting this use.
2. of the roughly 400 players available in-game, only three bear the tattoos at issue. When the tattoos do appear, they are displayed at only 4.4% to 10.9% of their actual size. Further, they are fairly distorted due to player movement, angles by which the player is viewed, etc. Therefore, the copying and use was de minimis (i.e., trivial).
3. inclusion of the tattoos was for the sole purpose of accurately depicting the players, which is transformative of the original purpose of the tattoos which was expression through body art. The tattoos rarely appear in the game and are, at most, incidental to the commercial value of the game. Inclusion of the players’ tattoos is unlikely to impact any market for tattoos. Therefore, inclusion constituted fair use.

However, two years later, the Seventh Circuit reached an opposite conclusion in a case with very similar facts, Alexander v. Take-Two.³ In Alexander, the plaintiff, Catherine Alexander, was a tattoo artist that inked six tattoos on the body of WWE wrestler Randy Orton. These tattoos were included in the in-game depictions of Orton in Take-Two’s WWE 2K games. Alexander argued that Take-Two wrongfully reproduced her work without permission. Take-Two asserted virtually the same affirmative defenses as are outlined above in Solid Oak Sketches, but with a different result. The court concluded that because there was no existing precedent in that circuit supporting de minimis use as a successful affirmative defense, it was consequently not a viable defense in Alexander, and stated that the tattoos were copied in their entirety anyway. The court further concluded that it was unclear that an implied license was ever granted, effectively eliminating that defense. The court then ordered the issue of “fair use” to be presented to a jury. The jury ruled in favor of Alexander, stated that the fair use defense failed, and awarded damages of $3,750.⁴

In the present case, Hayden, the defendants assert similar defenses to those outlined above: implied license; de minimis copying; and fair use. But because Hayden is in yet another jurisdiction separate from Solid Oak Sketches and Alexander–the Sixth Circuit–neither case is necessarily determinative precedent. The court could defer to either case as precedent or it could adopt other rationale. Either way, the case will certainly impact how video game developers and publishers approach the inclusion of tattoos in games moving forward. Potentially more impactful, it could impact how much control tattooed individuals have over their own image and likeness rights.

• 1.

  Hayden v. 2K Games, Inc. and Take-Two Interactive Software, Inc., 629 F.Supp.3d 736 (N.D. Ohio 2022).

• 2.

  Solid Oak Sketches, LLC v. 2K Games, Inc., No. 16-CV-724 (S.D.N.Y. Mar. 26, 2020).

• 3.

  Alexander v. Take-Two Interactive Software Inc., No. 18-cv-966 (S.D. Ill. Sep. 26, 2020).

• 4.

  Verdict Form, Alexander v. Take-Two Interactive Software, Inc., et al., No.3:18-cv-00966-SMY (Dist. Ct. 7th Cir. Ct. Sept. 30, 2022).