LeBron’s Tattoo Artist Can Proceed With Copyright Lawsuit Against Video Game Developers

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James Hayden is a celebrity tattoo artist who has worked with athletes of repute like LeBron James, and Shaquille O’Neil. Hayden filed a suit to 2K Games Inc. and Take-Two Interactive Software, Inc. who are the developers of the NBA 2K video game series. NBA 2K includes realistic renditions of today’s NBA players that are controlled by players of the game. Hayden said that the visual representations of NBA players LeBron James, Danny Green, and Tristan Thompson displayed his tattoos without his consent, violating his copyrights with the tattoos.

The parties both filed motions to dismiss the case. Hayden asserted that he was the owner of the copyrights on his tattoos and that they were clearly violated by game creators. 2k and Take-Two asserted that Hayden’s designs were not original enough to be protected by copyright. They also claimed that the application of the tattoos within this game is “de minimis,” meaning the tattoos’ use was insufficient to warrant infringement because they were tiny on the screen and only appeared briefly during the game. In addition, they claimed that the representation of the tattoos within the game represented non-infringement of “fair use,” because they were using the tattoos to serve another, or more transformative use than that their original purpose for which they were made. In addition, they claimed that Hayden had implicitly consented to have his tattoos shown in a video game such as NBA 2K, because he was aware that his NBA players would be playing in the games.

The court decided that Hayden’s tattoos are unique and original and permanent and therefore protected through copyright. The court also concluded that Hayden had demonstrated sufficient the ownership of copyrights.


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Concerning 2k as well as Take-Two’s defenses court did not decide on them in terms of law. The court determined that the question of the tattoos used within the game were in fact a de mimimis-related use was a matter of fact that a jury must decide. In addition, the court decided that the jury needed examine aspects of fact that are relevant to the fair-use defense, such as whether the usage of the tattoos within the game were transformative or not, how much the commercial intent of the game was weighed against fair use, as well as what extent tattoos were featured during the play. In the end, the court decided that the jury had to decide if Hayden wanted third parties like 2K as well as Take-Two to utilize the tattoos when they were designed by him.

The case is currently set for trial, but there is a possibility that the case will settle before proceeding through trial.

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