Prominent tattoo artist, James Hayden, recently filed a lawsuit in federal district court against the creators of the video game series “NBA 2K” for reproducing his copyrighted tattoo works on the digital versions of famous basketball players without his permission. Specifically, the complaint alleges copyright infringement, unjust enrichment, and violation of the Visual Artists Rights Act against 2K Games Inc. Hayden further claims the defendants’ reproduction of his copyrighted works is so detailed that the “NBA 2K17” version includes a “MyPlayer” feature allowing users to move, scale, rotate, and place over 3,000 customizable tattoos. Thus, Hayden’s copyrighted tattoo works are reproduced each time the game is played.
Hayden’s client roster includes superstars such as LeBron James, Shaquille O’Neal, Danny Green, Tristan Thompson, and Kyrie Irving. The complaint provides by way of example several of the designs he has created for famous clients. For instance, many fans of LeBron James are clearly able to recognize his classic tattoos including “Gloria” and “Lion Design” appearing on his right shoulder and the stars on his left shoulder. Danny Green’s tattoo of a basketball player emerging from flames beneath the words “I Hold My Own” is another example. Further, Tristan Thompson’s replica of Michelangelo’s “The Creation of Adam” readable beneath the words “I Am My Brother’s Keeper” is yet another iconic work visible in the game.
There is minimal case law involving tattoos and copyright law. At a minimum, however, tattoos are protectable works of art under U.S. copyright law. As such, artists presumably own the copyright to any original work created by that artist. A tattoo artist thereby has the exclusive right to control the reproduction, distribution, and public display of its copyrighted work.