Understanding Tattoo Copyright and Implied Licensing

The US District Court for the Northern District of Ohio issued an opinion in Hayden V. 2K Games, Inc. that could potentially put an end to tattoo copyright cases. Scott Hervey and Tara Sattler discuss the court’s opinion on this episode of The Briefing.

Watch this episode on the Weintraub YouTube channel here.

Show Notes:

Scott:
Earlier this year, we discussed a jury ruling in Hayden versus 2K Games, Inc, where a jury in the US District Court for the Northern District of Ohio found video game publisher Take-Two Interactive not liable for copyright infringement for a video game that incorporated a depiction of certain tattoos on LeBron James in the game NBA 2K. After the jury verdict, the plaintiff moved the court for a judgment as a matter of law. The court denied the motion and issued an opinion that may potentially put an end to these types of tattoo copyright cases. I’m Scott Hervey from Weintraub Tobin, and I’m joined today by frequent Briefing contributor Tara Sattler. We’re going to talk about the court’s opinion in Hayden versus 2K Games next on The Briefing. Tara, welcome back. It’s been a while.

Tara:
Thanks, Scott. Glad to be back.

Scott:
So, Tara, can you give us a rundown of the facts in this case?

Tara:
Yes, absolutely. So Solid Oak, a licensing firm that represents the go-to tattoo artist for NBA players, sued Take-Two Interactive software, the game publisher behind the popular NBA 2K basketball video game, alleging that the game maker’s depiction of LeBron and his tattoos infringes the tattoo artist copyrights 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. An implied license exists where one party created a work at the other’s request and handed it over, intending that the other copy and distribute it. The court in this case that the players had implied licenses to use the tattoos as elements of their likenesses and the defendant’s right to use the tattoos in depicting the players derives from these implied licenses. A crucial element of the court’s finding the tattoo artist knew their subject was likely to appear in public, on television, in commercials, or in other forms of media. After the jury verdict, the plaintiff then filed post-trial motions asking the judge to overturn the jury verdict or grant a new trial, which the judge denied.

Scott:
Before we go on, let’s have a quick review of what an implied license is. An implied license is basically permission to use a copyrighted work that’s inferred from circumstances and conduct rather than explicitly granting it in writing. In this case, the question was whether Hayden’s actions in tattooing LeBron James implied that he, Hayden, was giving permission for the tattoos to be depicted as part of LeBron’s likeness in various media, including video games.

Tara:
Let’s focus on the evidence the court looked to in upholding the jury’s finding of an implied license. We will talk about how this analysis will impact future similar cases and also provide some guidance to creators who may feature a person’s likeness, either actually or in some type of digital replica.

Scott:
There was testimony that NBA players like LeBron James expressly give the NBA and the Players Association the right to license their likeness, which those organizations then licensed to video game companies and others. But I think the most compelling evidence, the evidence which supported the implied license were the following two pieces of evidence. First, the fact that James had appeared, LeBron James had appeared in numerous NBA 2K games with his tattoos for years before getting tattooed by Hayden. Second, despite Hayden knowing that James was a star athlete and that he also had appeared as an avatar in video games, Hayden admitted that he never told James that he, meaning James, would need permission to show the tattoos on his person when James appeared in television or when he appeared in advertising or when he appeared in movies or was depicted in merchandise or in video games. Hayden’s exact reply to the questioning by the NBA 2K’s lawyer was, We never had a discussion about that. So pair that with James’ testimony, LeBron James’ testimony, that he, LeBron James, believed he had the right to license his entire likeness, including tattoos, and it was a slam dunk for the court, so to speak.

Tara:
It sounds like lack of any discussion about restrictions or approvals was really important here.

Scott:
Exactly. The court emphasized that the key question was Hayden’s intent at the time he tattooed LeBron James, based on the totality of the circumstances. The fact that Hayden never communicated any restrictions on displaying the tattoos, and possibly also the fact that LeBron James had appeared in video games prior to being tattooed by Hayden, seemed to weigh heavily on the court’s decision.

Tara:
Let’s talk now then about some important points of guidance that this case gives to creators who may feature a person’s likeness with tattoos in other media, like movies or animation. First, there’s the implied license. This case suggests that tattoo artists may be granting an implied license for the tattoos to be depicted as part of the person’s likeness in various media. In doing so, the totality of the circumstances would need to be considered in order to determine the tattoo artist’s intent at the time of creating the tattoo. For movies or animation, this could mean considering whether the artist knew that they were tattooing a public figure likely to appear in various media.

Scott:
Right. Another key factor would be if there were no restrictions conveyed by the tattoo artist to the person getting tattooed prior to the work commencing. The court found it significant that Hayden never communicated any restrictions to LeBron on his ability to display the tattoos, probably because I imagine LeBron James would look at him and get up and leave. This suggests that if a tattoo artist doesn’t explicitly restrict the use of their designs and their tattoos, it may be assumed that they’re allowing the tattoos to be depicted as part of that person’s likeness.

Tara:
Yes, and also relevant are existing licensing practices for the given media at hand. This case noted that the video game industry had long operated under the assumption that character likenesses included tattoos. This certainly applies to the movie and television industry where, at least prior to the tattoo cases, it was generally assumed that the right to feature a person’s actual likeness also included any tattoos that they may have on their body.

Scott:
Lastly, the understanding of the person getting tattooed is relevant. Le Ron James’ testimony that he believed he had the right to license his entire likeness, including tattoos, was considered relevant by the court. Now, absent, of course, any evidence of any restrictions expressly conveyed by the tattoo artist, the subject’s understanding of their rights to their own likeness, including those tattoos, will be taken into account by the court. Now, while this case doesn’t provide definitive rules for all situations, taken Together with the decision in the US District Court for the Southern District of New York and Solid Oak Sketches versus 2K Games, I think it shows that the courts will be inclined to find an implied license for depicting tattoos as part of a person’s likeness in various media, absent clear restrictions from the tattoo artist that are conveyed to the person getting the tattoo prior to the work being done.

Tara:
I think that’s right, Scott. I think it’s also right now in the age of social media, where almost everybody, of all generations, have a social media digital media presence of some kind or another. So this case started quite a while ago, but I think the court’s ruling rings true, especially now in the age of digital media that’s changed since this all started.

Scott:
Now, I definitely agree with you. And hopefully, we can begin to rely on the analysis that this court went through and stop being so concerned about the predicting actors that have tattoos in television and motion pictures, at least where that actor is a well-known actor. We understand that they received those tattoos prior to or after becoming a public figure like Mike Tyson.

Tara:
Yeah, I think that’s right for sure.

Scott:
Well, that’s all for today’s episode of The Briefing. Thanks to Tara Sattler for joining me today, and thank you, the listener, for viewing or tuning in. We hope you found this episode informative and enjoyable. And if you did, please remember to subscribe, leave us a review, and share this episode with your friends and colleagues. If you have any questions about the topics we covered today, please leave us a comment.