Copyright law dictates a piece of work must be “fixed in a tangible medium” to be awarded ownership rights, even if that medium is a living, breathing, and constantly moving being. Just like painting on a canvas, or scribing words to a page, tattoo artists can obtain protections for their work. Although tattoo designs are fully entitled to copyright protection, recent events have shown tattoo artists should beware the unexpected pitfalls of painting on an active canvas.
Famed tattoo artist Jimmy Hayden, who is known for bringing his talents to several current and former NBA stars, including the likes of LeBron James, Tristan Thompson, and Danny Green, has endured 8 long years of litigation against NBA 2K maker 2K Games Inc. and parent company Take-Two Interactive Software Inc.. Hayden filed a lawsuit against the game makers for reproducing his same tattoo designs on their in-game player-characters without granting a license or receiving any other compensation for his work.
In April 2024, a jury issued a verdict in favor of 2K and Take Two. The jury sided with the defense, agreeing that they were granted an “implied license” to replicate the image of the players included in the game. That is, LeBron James is free to grant permission to others to use his name, image and likeness as he pleases, which became a package deal with his tattoos as soon as they became one with his image.
The case was on appeal at the US Court of Appeals for the Sixth Circuit when Hayden finally dropped his lawsuits last week. It is unknown at this time if any agreements were reached between the parties outside of court, but this officially closes the door on any relief for Hayden from the courts.