Tattoos In Video Games: Can They Be Recreated In A Game Without A Tattoo Artist’s Consent?

By Sidra Lackey

A federal judge in Ohio has ruled that tattoos are copyrighted and a video game cannot depict an athlete’s tattoos in a video game without permission from the tattoo artist who created the designs. But now it is up to a jury to decide if it was fair use to include them in the NBA 2K video game series, reported in the law section of Artnet piece: “Can Tattoos Be Reproduced in Video Games Without an Artist’s Permission? An Ohio Jury Will Soon Decide.”

This case in question focuses on the six tattoos that tattoo artist James Hayden, owner of Focused Tattoos in Cleveland, Ohio, created for NBA players: Danny Green, LeBron James, and Tristan Thompson. Hayden registered the designs with the U.S. Copyright Office. In 2017, Hayden filed a lawsuit against video game developer 2K Games for “unauthorized use” of his work in video games: NBA 2K16, 2K17, 2K18, 2K19, 2K20, and NBA 2KMobile. In these video games, there are realistic, playable avatars of over 400 NBA players, Green, James and Thompson included, who are depicted with individual tattoos. 

2K Games fired back that tattoo artist Hayden’s designs (stars and a lion based on a playing card from a Las Vegas resort) “weren’t original enough” to warrant a copyright and even if they were, “their reproduction in the game meets the condition of fair use.” And because 2K Games doesn’t sell tattoos, their depiction of Hayden’s tattoo designs “did not compete with his business.” Even more so, 2K Games argued that because the tattoos were such an insignificant part of the game, they could be considered  de minimis use. Green, James and Thompson are among 400 players in the game and their tattoos on the screen are “quite small and difficult to discern during the fast-moving gameplay.” Lastly, 2K Games claimed that because the NBA players payed Hayden for their tattoos, that implied permission was given for the tattoos to be displayed in everything from photographs, tv appearances and video games.

But in a new ruling, Judge Christopher A. Boyko declared that Hayden’s tattoo designs do each have a valid copyright. A trial will be held to answer the questions of fair use, de minimus use, and if Hayden intended to authorize the players to allow third-party use of his registered designs. “[These] are questions of fact for the jury” to decide, Boyko stated.

This is not the first time athlete’s tattoos in video games have went before the U.S. court system. In 2020, a Manhattan federal judge ruled that “tattooists necessarily granted the Players nonexclusive licenses to use the Tattoos as part of their likenesses” in the NBA 2K series. (Tattoo company Solid Oak Sketches sued over the games’ inclusion of designs it had created for James and two other NBA players.) The video game’s use of the tattoos was found to be both de minimus and fair use. There’s another case set to go to trial in Illinois federal court, due to Catherine Alexander, a tattoo artist who tattooed wrestler Randy Orton, is now suing over the depiction of the body art in the WWE 2K video games, also produced by 2K Games. In 2020, the judge in that case found Alexander owned the copyright to Orton’s tattoos, but rejected the de minimus defense, then put the rest of the case in front of a jury.

Aaron Moss, an attorney at Greenberg Glusker in California wrote on the tattoo copyright issue on his blog, Copyright Lately in contemplation: “The court has effectively ruled that anyone with a tattoo is not in control of the uses to which his or her likeness is put. If the court’s ruling were to stand, it could effectively prevent anyone with a tattoo from appearing on film or even in a photo posted on social media without a jury weighing in on fair use. That should be a troubling thought, whether or not you have a tattoo.”

Tattoo artists, do you believe an artist’s tattoos on a client shouldn’t be used elsewhere for profit without permission from the artist? Or, do you not see a problem if an artist’s tattoos are used elsewhere without the artist’s consent (since the tattoo artist was originally paid already for the tattoo work done on a client)?