LeBron Tattoo Rights Ruling Reflects Artists’ Copyright Struggle

Setbacks in copyright lawsuits over video games’ depiction of tattoos on LeBron James and other athletes show tattoo art’s broadly-recognized protection can be superseded by the rights of its canvas—the athletes themselves.

After six years of litigation, an Ohio federal jury took just 90 minutes to find Take-Two Interactive Software Inc. and 2K Games Inc.'s blockbuster “NBA 2K” series didn’t infringe tattoo artist Jimmy Hayden’s rights in the work he’d inked on the basketball superstar. The verdict marked the third time since 2020 a judge or jury declined to endorse a tattooist’s claimed cut of a 2K video game’s profits when a real-life person depicted in the game flashed their designs.

Illinois tattoo artist Catherine Alexander fared better in 2022 when a jury found “WWE 2K” infringed her copyrights in tattoos on pro wrestler Randy Orton. But even in that case, the jury awarded Alexander just $3,750, a fraction of what she sought.

The cases pit artists’ copyright protections against celebrities’ rights of publicity and bodily autonomy—issues that have expanded as tattoos have exploded in popularity and video game realism broadens what aspects of celebrity personas are depicted. Despite the intriguing legal questions presented by such cases, tattoo artists are likely to continue to struggle against video game makers, attorneys said—a result they generally agreed is the right one.

“It’s certainly foreseeable that if you put a tattoo on someone famous they’re going to appear in various media without your permission,” art and copyright attorney Sarah C. Odenkirk of Cowan, DeBaets, Abrahams & Sheppard LLP said.

Beyond the particular clash between athletes’ rights in their own likenesses and tattoo artists’ right to their creations, attorneys say the disputes are also an example of a trend toward overreaching and entitlement in a shifting rights landscape—by both artists and technology companies.

Tattoo artists “would be wise to not bother suing” when their work is included on depictions of their clients in video games, intellectual property attorney Stephen McArthur of Beverly Hills, California-based The McArthur Law Firm said in an email. Copyright law allows courts to award attorneys’ fees to the winning party, adding risk for artists, while juries are unlikely to award more than minimal damages, he said.

“The asymmetry of risk—the possibility of winning a few thousand dollars versus hundreds of thousands in attorneys’ fees owed in a loss—is too high,” McArthur, who represents companies that make video games, said. On top of that, he said pressing a suit in hopes of an early settlement might still be difficult because “I would expect defendants to be emboldened by these rulings.”

Superseding Rights

No appeals court has ruled on whether tattooing an original work triggers copyright protection, though the Copyright Office and district courts have accepted the premise.

In one case, a Missouri federal judge said the 2011 film “The Hangover Part II” likely infringed a tattoo on the face of former boxer Mike Tyson by copying it on another character. The judge then denied the artist a preliminary injuction blocking the movie’s release on other grounds, and the studio settled with the artist a month later.

2K Games defeated another suit centered on basketball players’ tattoos in a New York federal court in 2020, with Judge Laura Taylor Swain finding the players had received implied licenses to display the tattoos when they got them. Swain also said the tattoos made up only a very small, de-emphasized portion of the video game and their depictions were fair use as they were for a different purpose than the original works and didn’t harm the market for them.

The Ohio jury in the latest ruling was also presented with those defenses, but reached only the implied license question. Those rulings—and the small award for Alexander—likely stem from a sense that it “just doesn’t seem right” to restrict people’s ability to license their appearance, copyright law professor Philippa Loengard of Columbia University said.

“The juries are probably sensitive to this idea that one has bodily autonomy,” Loengard said. “If you are tattooing somebody, especially someone you know will be in the pubic eye, you can’t curb that person’s use of their body without infringing some inherent right.”

Alexander, the Illinois tattooist, overcame that notion to win on liability, and while she could still receive attorneys’ fees, her win could prove costly if she doesn’t. Further, the case remains pending, as 2K Games has asked the judge to set aside the jury’s verdict and, failing that, could also appeal.

There are scenarios where an artist might have a strong case to sue over a tattoo, even beyond another tattoo artist copying it on their client, IP attorney Lisa A. Callif of Donaldson Callif Perez LLP said. If the alleged infringer is copying the work to showcase its artistic value rather than to accurately depict a person, the artist would have a much better argument, she said.

But Callif said she thinks courts shouldn’t hesitate to dispose of cases like the 2K Games lawsuits before trial.

“This shouldn’t even be an issue, so I like the idea that if it does become an issue, it goes away quickly,” she said. “If you’re authorizing someone to use your name, voice, and likeness, your likeness includes tattoos.”

Entitlement, AI

Callif described the tattoo lawsuits against 2K Games as part of a broader “wave of entitlement of creators” overreaching with copyright law to protest what she said are minimal, non-infringing uses. She described a recent case she worked on, in which the owners of photos taken in the 1970s registered a copyright a year ago to sue her client over “completely de minimis use.” While legal, Callif said, the case wasn’t worth litigating.

“We just settled with them for $40,000. It made me so sick, it was so unfair,” Callif said. “There’s so much of that, and it’s disheartening. It’s making it harder for people to tell their stories and exercise their rights under the First Amendment.”

Odenkirk said she sees the cases as part of another pattern. Compared with copyrights, publicity rights are relatively new, and technology like hyper-realistic video games and artificial intelligence opens other doors. The “sea change” in perspectives on different rights to art, persona, and even personal data requires evaluating what’s valuable, how to prioritize rights, what aspects people should be able to control, and who should profit, she said.

She noted disputes over rights to individuals’ data and AI developers’ quest for vast quantities of copyrighted works to train their machines. Though she accepts 2K Games’ implied license argument, Odenkirk said courts, lawyers, and litigants still need to be aware of the interests that are “impacting the laws that are impacting the arts.” It’s an “uphill battle” given the “gigantic investment” by tech companies seeking access to material, she said.

“Arts workers are demanding to be compensated for their labor. There’s a strengthening labor movement, and strengthening ideas around individual ownerships and entitlements,” Odenkirk said. “At the same time, very large companies are trying to gobble up everything they can without owing anybody anything.”