Another Court Gets It Right in Tattoo Copyright Dispute

The recent decision on Hayden vs. 2K Games is a big win for video game publishers.  Dive into the fascinating world of copyright disputes over tattoos in video games. Scott Hervey and Jamie Lincenberg from Weintraub Tobin discuss how this case compares to past decisions and what it means for athletes, celebrities, and the video game industry on the latest episode of “The Briefing” Get the full episode on the Weintraub YouTube channel here or listen to this podcast episode here. Show Notes: Scott Two years ago, I took the position that the District Court for the Southern District of Illinois and the Court of Appeals in the case of Alexander versus Take2 Interactive Software got it completely wrong when they found that the depiction of tattoos on wrestler Randy Orton in a video game published by Take2 Interactive infringed the tattoo artist's copyright in the tattoos. I said that both the court's rejection of Take-Two's defenses, defenses that won the day in the US District Court for the Southern District of New York in Solid Oak Sketches versus 2K Games was absolutely incorrect. Now, we have the US District Court for the Northern District of Ohio deciding another copyright dispute over an inked athlete depicted in a take two interactive video game, and this court got it right. I'm Scott Hervey from Weintraub Tobin, and I'm joined today by frequent Briefing contributor, Jamie Lincenberg, and we're going to talk about this case, Hayden versus 2K Games, Inc, on this next installment of “The Briefing.” Jamie, welcome back to the briefing. Jamie Thanks, Scott. It's good to be here again. Scott So, let's dive right into this case because these tattoo lawsuits, I find them interesting. Well, this one decision that I previously noted, the Alexander case, really got under my skin. But let's talk about this one first. The result in Hayden versus 2K Games was a jury verdict. The jury found that 2K Games enjoyed an implied license to incorporate a depiction of certain tattoos on LeBron James and that the depiction, as depicted on a video game character, did not violate the copyright of Hayden, who was the tattoo artist that created these tattoos. This was the same result that the court reached in Solid Oak Sketches versus Take-Two Interactive. Jamie Yes, that case also involved LeBron James' tattoos and the NBA 2K video game. Scott That's right. Solid Oak was a licensing firm that represented or represents, probably still, the go-to tattoo artist for NBA players. And Solid Oak Sketches sued Take-Two Interactive Software, the game publisher behind the popular NBA 2K basketball video game. And Solid Oak Sketches alleged that the game maker's depiction of LeBron James and his tattoos, infringe the tattoo artist copyright in six tattoos. In ruling on the video game publisher's motion for summary judgment, the court found that the publisher had an implied license to depict the tattoos in the video game. Now, an implied license exists where one party created work at the other party's request and handed it over, intending that the other party copy and distribute or otherwise use it in the manner intended. The court in this case found that the players had an implied license to use the tattoos as elements of their likeness, and the defendants right to use the tattoos in depicting players in the video game derives from this implied license from the tattoo artist to the player. A crucial element of the court's finding that the tattoo artist knew their subject...