Tattoo artist Jimmy Hayden, who claimed that the reproduction of his ink work on basketball player LeBron James in the NBA 2K video game series constituted copyright infringement, has lost his lawsuit against video game maker Take Two.

A Cleveland jury on Friday sided with the makers of the popular video game series “NBA2K” over its use of two tattoos inked on LeBron James by Hayden, ruling that Take-Two had a license to use James’ image in NBA 2K, de facto including his tattoos as well. In essence, the video game maker had an implied license to use the tattoos through its agreements with the NBA, which itself had a deal with the Le Bron James. Therefore, it didn’t violate Hayden’s copyrights.

Historically the tattoo industry was considered outside the law and not subject to the same laws and regulations as other art forms. However, cultural norms have changed dramatically in the last two decades and when tattoo culture entered the mainstream, a parallel increase in interest regarding the intellectual property issues related to them arose.  

The application of copyright law to tattoos is a relatively new concept. Who owns the copyright?, Is it the artist? The client? Generally speaking with artwork, the creator of the art is the owner of the copyright. But there are exceptions to this. If work is created in the scope of employment, the employer is the owner of the rights, unless there is an agreement to the contrary. So, depending on the terms of a tattooist’s employment, this could mean the tattoo studio owner that employs a tattoo artist owns the copyright.

Both of these scenarios present some awkward legal issues. If anyone other than the customer owns the copyright, they also have the power to control it, would this also give the copyright owner the power to prevent someone from augmenting or destroying the tattoo? If the copyright owner wanted the image destroyed, could they force a tattoo client to go under the laser? It seems unlikely any judge would force a client to receive laser treatment because the original artist or copyright owner wanted the tattoo destroyed, or conversely deny the client the right to remove or augment the tattoo should they so wish. For one this would present a conflict with human rights law. But hypothetically speaking, this could be a result of applying general copyright law to tattoos. This is the problem with attempting to shoehorn tattoos into general copyright law – the application of these laws just won’t sit comfortably when applied to art fixed to another human being.

The ruling does not come as a surprise. Take-Two beat a similar lawsuit back in 2020 when it was sued by Solid Oak Sketches, who had signed copyright license agreements with a number of tattoo artists who had inked NBA players featured in the video game, NBA 2K16. Solid Oak had claimed that Take Two required a license to reproduce the tattoos in their video game. The court ruled in that instance that Solid Oak did not establish substantial similarity between real-life tattoos and video game tattoos and also that use of the copyrighted material was de minimus.

Speaking about Friday’s ruling, Take-Two’s attorney Dale Cendali claimed the case was a victory for “anyone who has ever gotten a tattoo and might have otherwise worried about their freedom to share their bodies with their tattoos”.