How Video Game Designs Discredit Tattoo Artists – Trinitonian

A major question has recently surfaced in the art community: can a video game depict an athlete’s tattoos without the permission of the artist who created and tattooed the design?
James Hayden, owner of Focused Tattoos of Cleveland, has tattooed many athletes, including LeBron James, Tristan Thompson, Kyrie Irving and Danny Green. Although Hayden’s designs are registered with the US Copyright Office and therefore protected by law, video game developer 2K Games reproduced the designs without giving Hayden credit.

Hayden filed an initial lawsuit in federal court in Cleveland in December 2017 against 2K Games and Take-Two Interactive Software. He later stated that his works were copyrighted in three versions of the esports game: “NBA 2K 2016”, “NBA 2K 2017”, and “NBA 2K 2018”. These games feature over 400 NBA players, including those tattooed by Hayden.

The game created hyperrealistic representations of these players for basketball fans around the world to simulate the NBA experience. 2K Games argued that the designs were not original and did not warrant a copyright, as some included commonly drawn designs of stars and lions. On top of that, the athletes tattooed by Hayden are just a few of the hundreds of players included in the video game.

2K Games also said that because gamers paid Hayden for the tattoos, it guarantees permission to be displayed in all forms of media, ranging from photographs and television to video games. This supports their argument that Hayden is aware of the large media presence of these players and therefore permission from the artist is implied.

According to the court’s decision, the designs were usable under de minimis use. De minimis is a legal term, derived from a Latin expression meaning “pertaining to minimal things”. This is used when the defendant’s use of the copyrighted work is so minor that a viewer is unlikely to recognize the unlawful use of the material. The court concluded that since the tattoos were not the main focus of the game and only appeared for a limited time, there was no infringement.

Asked about the controversy, some of the players themselves expressed their opinion on the matter. “My tattoos are part of my personality and my identity,” Lebron James said in support of 2K Games. “If I wasn’t shown with my tattoos it wouldn’t really be a representation of me.”

Hayden’s case is not the only one to call for action against 2K Games and its affiliates. In Illinois, tattoo artist Catherine Alexander is suing the same company over her depiction of designs she produced for WWE wrestler Randy Orton.

The lawsuit was filed in 2018, where Alexander argued that reproducing her art was copyright infringement and that she never licensed any game development company to recreate those designs. She stated that she produced several tattoo designs on Orton between 2003 and 2008. She had previously contacted WWE to feature her work without his permission, to which WWE offered $450 for the reproduction rights to the material. Alexander rejected this offer.

This week, a conclusion was finally reached in this trial — the jury decided in favor of Alexander. U.S. District Judge Staci M. Yandle issued an order stating, “It is undisputed that Alexander holds valid copyrights to the five tattoos at issue and that the defendants copied his works protected by copyright.” The decision determined that Alexander was entitled to $3,750 for the use of his designs.

This is a complicated development for the entire artistic and media community. These issues are not limited to reproductions of video games, but can extend to questioning the presentation of other people’s art in films and photographs. This has a significant effect on individuals’ ability to license their art and for content developers to realistically represent art on a topic of interest. Even if the jury decides in favor of the artists, the compensation received can be quite disheartening. This situation also impacts artists’ willingness to speak out, knowing that previous cases have diminished their work and the court often does not consider these situations worth pursuing.

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