Videogame Maker Has Implied License to Depict Copyrighted Tattoos–Hayden v. 2K

This is one of several copyright cases brought by tattoo artists against videogame makers for depicting athletes bearing their tattoos. This particular case, involving tattoo artist Hayden, videogame NBA 2K, and basketball players like LeBron James, reached a jury. The jury needed only 90 minutes to determine that the defendants had proven their implied license defense, ending the case. The jury verdict form doesn’t provide any more details, but one likely inference is that getting a tattoo comes with an implied license allowing the tattooed person to be depicted in the world, including for commercial purposes. More details from Bloomberg Law and VitalLaw. I imagine an appeal is coming.

I would companion this decision with the jury verdict in the Sedlik v. Kat Von D case. That case involved a photographer who sued the tattoo artist for depicting the copyrighted photo in a tattoo. The jury ruled that the tattoo wasn’t substantially similar to the photo, which is a remarkable conclusion given the intentionally high degree of similarity between the tattoo and the photo used as a reference. One possible inference from the Sedlik jury verdict is that tattoos might never be substantially similar to their source material because the human skin as a medium inevitably makes it different. This ruling is on appeal.

The Hayden jury verdict contrasts with the Orton case, where a jury awarded a tattoo artist $3,750 for depicting Orton and his tattoos in a videogame. Due to the fact-specific nature of doctrines like implied licenses and fair use, it’s possible the Hayden and Orton jury verdicts are consistent with each other. More likely, I view the Orton jury verdict as an outlier when considered against the Hayden and Sedlik defense-favorable jury determinations. If the Orton ruling is in fact the more accurate statement of the law, then anyone getting a tattoo has to obtain rights clearances or they become a walking liability to everyone who might want to depict them.

Case citation: Hayden v. 2K Games, Inc., 1:17-cv-02635-CAB (N.D. Ohio April 19, 2024)

Prior Tattoo Copyright Blog Posts