How Far Does a Tattoo Artist’s Exclusive Right of Reproduction Extend?

How Far Does a Tattoo Artist’s Exclusive Right of Reproduction Extend?

 

On April 19, 2024, an Ohio federal jury ruled in favor of the makers of the NBA 2K video game series in a copyright infringement suit brought by a tattoo artist.

James Hayden (“Plaintiff”) is a tattoo artist who has inked designs on many NBA players, including, LeBron James, Danny Green, and Tristan Thompson.

2K Games and Take-Two Interactive Software Inc. (“Defendants”) are the makers of the hit basketball video game series NBA 2K, which has been released annually for over twenty years.

Plaintiff first brought his copyright infringement suit against Defendants in 2017, claiming Defendants violated his exclusive rights by including images of the tattoos on the video game avatars of James, Green, and Thompson without his permission or compensation. Four of the six tattoos were ultimately removed from the case for Plaintiffs failure to disclose that the designs incorporated preexisting works, making them insufficiently original to warrant copyright protection. The two tattoos that remained in the case were those Plaintiff inked on James.

Defendants argued Plaintiff had given, and Defendants received, an implied license to use any and all forms of exploitation of James’ name, image, or likeness in their video game, including, but not limited to, images of his tattoos. They argued that James is one of the most famous people on the planet, and his likeness is shown all over television and social media every day. They further argued that Plaintiff was well aware of James’ social status at the time he inked the tattoos involved.

The case did end up going to trial in April 2024. The jury ultimately agreed with the Defendants. Defendant lauded the verdict by stating any other outcome would have restricted the freedom of anyone with a tattoo’s ability to share their likeness.

While a tattoo artist certainly is entitled to copyright protection for their creative expressions, their rights cannot come at the expense of restricting another’s ability to use their body as they please.

Hayden is represented by John Cipolla, Daniel McMullen, Todd R. Tucker, Andrew Alexander, Josh A. Friedman, Dustin Likens, and Kimberly A. Pinter of Calfee Halter & Griswold LLP.

Take-Two and 2K Games are represented by Dale M. Cendali, Joshua L. Simmons, Chris Ilardi, Joshua C. Berlowitz, Miranda D. Means, Yungmoon Chang, and Julien Jean-George Crocett of Kirkland Ellis LLP, and Matthew J. Cavanaugh of McDonald Hopkins LLC.

The case is Hayden v. 2K Games Inc., et al., case number 1:17-cv-02635, in the U.S. District Court for the Northern District of Ohio.

* Lowe & Associates (“The Firm”) is a boutique entertainment and business law firm located in Beverly Hills, California. The firm has extensive experience handling cases involving copyright law, having provided top-quality legal services to its clients since 1991. The Firm is recognized for its many achievements, including successfully litigating many high-profile cases.

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