Inky Implications: Tattoo Copyright and Implied Licenses
On April 19, 2024, after a highly publicized trial, the jury in the copyright infringement case Hayden v. 2K Games, Inc. returned a verdict finding that an implied license existed as to the depiction of tattoos inked by the plaintiff on three professional basketball players in the NBA 2K video game franchise. This decision follows a similar 2020 case in New York—Solid Oak Sketches, LLC v. 2K Games, Inc. (which we previously discussed here)—where on a motion for summary judgment the court held that 2K Games did not infringe a tattoo artist’s copyrights for multiple reasons, including fair use, de minimis use, and an implied license. However here, unlike in Solid Oak, these questions were turned over to a jury to decide, and the jury’s decision started and stopped with the implied license issue, leaving the remaining issues presented undecided.
Background
James Hayden, a tattoo artist who has inked several NBA stars including Danny Green, LeBron James, and Tristan Thompson, filed suit in the Northern District of Ohio against game studios 2K Games and Take-Two Interactive (collectively “Take-Two”). Mr. Hayden alleged that Take-Two infringed six of his registered copyrights in tattoos inked on the three named NBA athletes when they reproduced the athletes’ likenesses, including their tattoos, in the NBA 2K video game series. As part of these reproductions, Take-Two obtained licenses from both the NBA and the NBA Players Association to portray the athletes’ likenesses in the games and conducted full-body image scans of the athletes to achieve maximum realism.
Take-Two raised numerous defenses as it had in Solid Oak, against Mr. Hayden’s claims, including fair use, de minimis use, and questioning the very validity of the copyrights. However, of the questions that ultimately reached the jury the first and most important was whether an implied license existed for depicting the tattoos as they existed on the athletes in the games. Because the jury found that such an implied license existed, Take-Two’s depictions of those tattoos in the NBA 2K games were deemed authorized, and so there was no need for the jury to fully examine any other defenses to an unauthorized use.
Implied Licenses
In U.S. copyright law, a copyright owner is granted numerous exclusive rights in the distribution and display of their work, sometimes referred to as the “bundle of rights.” These rights are freely divisible by the owner, meaning that any of the exclusive rights, or even subdivisions of them, may be transferred to another entity, usually in the form of an express license (e.g., “I give you the exclusive right to write a stage play based on my novel”).
Absent any actual agreement between the copyright owner and a would-be licensee, however, courts may still recognize an implied license from the owner to another party to exploit the work in some capacity. An implied license can exist where someone requests a work to be created (the licensee), the creator then creates and delivers that requested work (the licensor), and the parties’ conduct at the time of the creation and delivery of the work indicates an intent that the licensee be able to copy and distribute the work. Courts consider numerous factors to determine whether such intent existed, including whether the parties were engaging in a one-off transaction or if the work was created as part of an ongoing relationship, whether the licensor regularly uses written contracts requiring their permission for future displays or distributions, and the norms and practices of the relevant industry or community.
In This Case
Here, like in Solid Oak before, Take-Two prevailed on its argument that a non-exclusive implied license existed between Mr. Hayden and the NBA players, which permitted the players to freely display those works. The NBA players requested the tattoos from Mr. Hayden, Mr. Hayden inked them without any express limitations on the athletes’ freedom to display their new tattoos, and the players indeed do regularly display them. Basketball games featuring these players are regularly broadcast to millions of viewers, and most of the tattoos at issue are on full display during these games. Athletes like LeBron James are additionally frequently photographed and recorded off the court, including the 2021 film Space Jam: A New Legacy and numerous Nike commercials. Because this implied license existed, apparently without limitations, the players were free to permit Take-Two (through the NBA Players Association) to reproduce their likenesses—including tattoos on their bodies—in the NBA 2K games.
In the context of tattoos, this outcome makes a lot of sense. While tattoos are undeniably artistic expressions worthy of copyright protection, they are also a fundamentally different sort of artwork than a drawing or painting simply due to their medium: a person’s skin. The tattoo artist, unlike an illustrator or painter, necessarily loses some control of their work once it’s complete and the recipient gets up to go about their life; the artist cannot reasonably control when or where the work is displayed, as that would require them to exercise control over when or where the person could be. And as the Solid Oak court previously observed, “tattooists necessarily grant the Players nonexclusive licenses to use the Tattoos as part of their likenesses.”
The Takeaway
Like Solid Oak, this is an excellent outcome for developers and publishers who want to create a realistic depiction of the world. There are also some thematic similarities between this and the trademark infringement case A.M. General v. Activision, where the court dismissed plaintiff Humvee manufacturer’s claim over the realistic depiction of the vehicle in Activision’s Call of Duty franchise. This, paired with the near-identical outcome in Solid Oak, suggests that game developers seeking to depict real-life tattooed individuals with their tattoos can do so if they have otherwise obtained the rights to reproduce that individual’s likeness. There is also the possibility, unlikely though it may be, that tattoo artists might seek additional protections for their works in the form of express licenses or permissions for their work, though whether such restrictions would withstand legal scrutiny remains to be seen.
This verdict also stops far short of granting carte blanche permission to depict copyrighted works under the broad claim of realism, and it should be read narrowly. This applies only to depicting real tattoos on real individuals to create a sense of realism in the game, and would not apply to, for instance, depicting a real, copyright-protected tattoo on a fictional character. In those instances, it’s still best to create original tattoos or seek an express license from the artist.