The verdict in the trial over LeBron James tattoos in NBA 2K prevents a major precedent

A jury voted unanimously in favor of Take-Two Interactive Software on Friday, rejecting tattoo artist Jimmy Hayden’s claims that the video game maker violated copyrights when he recreated Los Angeles Lakers star LeBron James in its NBA 2K series. After a week in an Ohio court, the jury concluded that Take-Two had an implied license to recreate James’ tattoos, which was conferred on the game maker by James’ agreement with the company.

Hayden first sued Take-Two in 2017 over the use of several tattoos he made for James that were reproduced in NBA 2K games from 2016 to 2020.

Take-Two attorney Dale Cendali said the company was “pleased” with the ruling. She continued: “The decision is an important decision for the entertainment industry. It’s also an important decision for anyone who has ever gotten a tattoo and would otherwise have been concerned about the freedom to share their body with their tattoos. And it’s a good development for tattoo artists because a contrary ruling could have stopped people from getting tattooed at a time when the art form is thriving.” Hayden’s lawyers did not respond to requests for comment.

Hayden originally sued for six tattoos he made for James, but U.S. District Judge Christopher Boyko ruled against the artist in early 2024, saying Hayden could only sue for two of those six tattoos: a tattoo with stars and another with James’ name ‘Mother, Gloria.

The jury trial began Monday with opening statements in which Hayden’s attorney, Todd Tucker, said Take-Two had “painstakingly copied” Hayden’s work for the game, a local news outlet reported Cleveland.com. In addition to opening arguments, jurors watched clips of NBA 2K games featuring James. James did not appear in court, but Take-Two’s lawyers planned to play his recorded statement to the jury. Take-Two also reached out to game designer and Play anything Author Ian Bogost is a witness, according to court documents.

Image: 2K Games/Take-Two Interactive Software

Tucker told the jury that Hayden has was compensated for the use of his tattoos – even on James – by other companies such as Warner Bros Space Jam 2. He got $1,500 for it, Tucker said.

For Take-Two, attorney Dale Cendali said Hayden was just paid after Filing the lawsuit and that James’ tattoos only make up a very small part of NBA 2K. Cendali said James licensed his own likeness from Take-Two through the NBA Players Association – a ruling in Hayden’s favor would mean James would have to ask Hayden for permission to license his own essence, as reported by Cleveland.com.

“Take-Two didn’t need permission because Mr. James had already given Take-Two permission,” Cendali said. “That’s exactly what this case is about. The crux of the matter is Mr. James’ ability to license his likeness. This case affects Mr. James much more than Take-Two.”

At issue is whether a tattoo artist can copyright art given to them “implied license” – that is, permanently gluing something to someone’s body. Sure, a sketch or design may be copyrightable, but once it’s in someone else’s possession, who owns it? For Hayden’s side, it’s a trademark issue, but Take-Two says a win in Hayden’s favor turns this into a serious issue of ownership over licensing one’s likeness. It’s an issue that video game companies and tattoo artists have been arguing about for years – and there’s still no real legal consensus.

This isn’t the first time a video game company has been sued over an athlete’s tattoos – nor even the first time for Take-Two. A company called Solid Oak Sketches sued Take-Two in 2016 over James’ tattoos, as well as those of Kobe Bryant, DeAndre Jordan, Eric Bledsoe and Kenyon Martin. Solid Oak Sketches said it had licensing agreements for the tattoos. Take-Two won that lawsuit in 2020 after a judge declared the tattoos fair use. On the downside, Take-Two lost a lawsuit brought by tattoo artist Catherine Alexander in 2022, who tattooed five tattoos on WWE wrestler Randy Orton. She filed a claim in 2018 after these designs appeared on Orton in WWE 2K games, and ultimately won $3,750 in damages – not a huge win, but more than the $450 WWE originally (and unsuccessfully) awarded her. offered as a license.

Hayden, the tattoo artist from this case, Another legal dispute is currently ongoing with Take-Two over the use of tattoos about James, Danny Green and Tristan Thompson in NBA 2K21; This lawsuit has been put on hold until a decision is made in the ongoing court dispute.

In 2012, a tattoo artist sued Electronic Arts over a tattoo on NFL running back Ricky Williams’ arms after it was reproduced NFL Street. In 2013, Another tattoo artist sued THQ UFC undisputed 3, which features a tattoo from the work of artist Christopher Escobedo on fighter Carlos Condit. Both lawsuits were dismissed and Condit’s tattoos were removed from the UFC game.

To update: This story has been updated to reflect the jury’s decision for Take-Two Interactive Software.