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The trial over NBA 2K’s LeBron James tattoos could set huge precedent
16.04.2024 - 16:33 / polygon.com
Take-Two Interactive Software is in an Ohio court this week to fight a lawsuit over the use of Los Angeles Lakers superstar LeBron James’ tattoos in its games. Tattoo artist Jimmy Hayden first sued Take-Two in 2017 over the use of several tattoos he made for James that were reproduced in NBA 2K games from 2016 to 2020.
Hayden was originally suing over six tattoos he created for James, but U.S. District Judge Christopher Boyko ruled against the artist in early 2024, saying Hayden could only sue over two of those six tattoos: a tattoo of stars, and another of James’ mother’s name, Gloria.
The jury trial began Monday with opening arguments, where Hayden’s attorney Todd Tucker said Take-Two “painstakingly copied” Hayden’s work for the game, according to local news outlet Cleveland.com. Alongside opening arguments, jurors watched clips of NBA 2K games featuring James. James will not appear in court, but Take-Two’s lawyers will play his recorded deposition for the jury. Take-Two has also called game designer and Play Anything author Ian Bogost as a witness, according to court documents.
Tucker told jurors that Hayden has been compensated for the use of his tattoos — even on James — by other companies, like Warner Bros. with Space Jam 2. He got $1,500 for that use, Tucker said.
For Take-Two, attorney Dale Cendali said that Hayden got paid only after filing the lawsuit, and that James’ tattoos are a very small part of NBA 2K. Cendali said James licensed his own likeness to Take-Two through the NBA Players Association — a ruling in Hayden’s favor would mean James would have to ask Hayden permission to license his very own being, as reported by Cleveland.com.
“Take-Two didn’t need permission because Mr. James already gave Take-Two permission,” Cendali said. “That’s exactly what this case is about. The whole point is Mr. James’ ability to license his likeness. This case affects Mr. James much more than Take-Two.”
The issue at stake is whether a tattoo artist can copyright art they’ve given an “implied license” — i.e., putting something permanently on someone’s body. Sure, a sketch or design may be able to be copyrighted, but once it’s on another person, whose is it? For Hayden’s side, it’s a trademark issue, but Take-Two says a win in Hayden’s favor makes this a serious issue of ownership of licensing one’s likeness. It’s an issue that video game companies and tattoo artists have been litigating for years — and there’s still no real legal consensus.
This isn’t the first time a video game company has been sued over an athlete’s tattoos — not even the first time for Take-Two. A company called Solid Oak Sketches sued Take-Two in 2016 over James’ tattoos, as well as tattoos on Kobe Bryant, DeAndre Jordan, Eric
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