Does This Court’s Ruling Put an End to Tattoo Copyright Cases?

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,