By Eleni Paraskevopoulos
For those unfamiliar with the video game franchise, NBA 2K, named 2023’s most popular video game in the U.S., is a series of basketball simulation video games designed to emulate the NBA where basketball enthusiasts can fulfill their NBA dreams by playing as NBA players of both the past and present.[1] A major feature of 2K is the increasingly accurate likeness of NBA players in the playable avatars.[2] In order for there to be optimal likeness, all aspects of players should be accurately represented: from an individual’s height to their eye color to even their tattoos. Tattoos are becoming more important especially when given that as of 2020, an estimated 56% of NBA players have tattoos.[3] So what happens when the tattoo art being reproduced in a 2K, is done so without the permission of the artist and copyright holder?
This is the issue that many courts are currently facing with the development of games like 2K.[4] In 2017, James Hayden, celebrity tattoo artist whose clients include notable NBA players such as LeBron James, Shaquille O’Neal, and Tristan Thompson, filed a complaint against 2K Games and Take-Two Interactive Software, the developers of the video game series.[5] He claimed that in 2K’s realistic visual depiction of NBA players with his copyrighted work on them, done without his authorization, is an explicit infringement of his copyright rights.[6] The Fourth Amended was then filed in 2019 and in 2022 the matter came before the court upon a Motion for Partial Summary Judgement.[7]
2K and Take-Two has offered multiple defenses to Hayden’s claim, arguing the depiction of the players in the video games was fair use, implicitly authorized and de minimis.[8] Fair use of copyrighted work and otherwise protected materials is not an infringement of copyright.[9] In determining this, the factors that may be considered include the purpose and character of the use, the nature of the copyrighted work, the amount and substantiality of the portion used, and the effect of the use upon the potential market. Courts look at the alleged infringer’s intent to and actual use of the copyright material in determining this.[11] In weighing these factors courts look at whether the work is being used for criticism, commentary, or news and scholarly reporting, which is protected by the fair use doctrine.[12] Courts also consider whether the alleged infringer is using the copyrighted material for their own commercial gain and whether this gain negatively affects the owner.[13] Part of this insight involves examining the nature of the copyrighted material; typically, more creative and original work (as opposed to more factual and technical) is less likely to support a claim of fair use.[14]
2K and Take-Two have also argued that Hayden implicitly authorized the use of his copyrighted material by entities such as the 2K video game franchise, by knowingly tattooing famous athletes whose likeness is to be reproduced.[15] Intuitively, an athlete’s likeness would include the tattoos on their body.
2K and Take-Two have also contended that the depictions of NBA players was de minimis, and thus not an infringement on Hayden’s copyright.[16] In copyright law, de minimis is a defense used by the alleged infringer to demonstrate that the what would be otherwise protected material that is so inconsequential “as to fall below the quantitative threshold of substantial similarity, which is always a required element of actionable copying.”[17] Should the alleged infringer be unable to show there is substantial similarity between the copyrighted work and infringing work, where the differences are so apparent to the average person, this defense will fail.[18]
On all three of these defenses, the court has decided that these are facts that need to be decided by the jury based upon the evidence presented at its trial.[19] Though this upcoming decision may merely scratch the surface regarding copyright law and its future implications regarding modern and developing technology, it may present an abundance of future complications in our current intellectual property law, as it evolves with technology.
[1] Anna Tingley, NBA 2K Is the Most Popular Video Game in the U.S. (and It’s Currently On Sale Online), Variety, (June 11, 2023 11:05pm), https://variety.com/2023/gaming/news/nba-2k-where-to-buy-online-1235642529/.
[2] See Michael McCann, Judge Rules in Favor of ‘NBA 2K’ Creators in Case Brought by Tattoo Artists, Sports Illustrated, (Apr. 6, 2020), https://www.si.com/nba/2020/04/06/nba-2k-ruling-tattoo-artists.
[3] Id.
[4] Hayden v. 2K Games, Inc., 629 F.3d 736, 741 (N.D. Ohio 2022); See Isaiah Poritz, NBA 2K Must Face Copyright Trial Over Artist’s Player Tattoos, BL (Sept. 21, 2022, 3:54 PM), https://news.bloomberglaw.com/ip-law/nba-2k-must-face-copyright-trial-over-artists-player-tattoos.
[5] Sourcestaff, Lebron’s Tattoo Artist Can Proceed with Copyright Lawsuit Against Video Game Developers, Source (Oct. 7, 2022), https://thesource.com/2022/10/07/lebrons-tattoo-artist-can-proceed-with-copyright-lawsuit-against-video-game-developers/.
[6] Id.
[7] Hayden, 629 F.3d at 741.
[8] Id. at 745.
[9] 17 U.S.C. § 107.
[10] Id.
[11] U.S. Copyright Fair Use Index, U.S. Copyright office, https://www.copyright.gov/fair-use/index.html (Feb. 2023).
[12] Id.
[13] Id.
[14] See id.
[15] See supra Poritz.
[16] Hayden, 629 F. 3d at 745.
[17] Id. (citing Gordon v. Nextel Communs,. 345 F.3d 922, 924 (6th Cir. 2003)).
[18] Id. at 746.
[19] Id. at 746–749.
Image Source: https://olympics.com/en/news/lebron-james-career-stats-records-awards-medals