By Jared Good, JD
James Hayden, a tattoo artist working out of Focused Tattoo, alleged in a suit filed on December 18th, 2017, that a well-known gaming company infringed his copyright in the tattoos he created for several NBA players, most notably LeBron James.
The defendant, Take-Two Interactive Software, Inc. (hereafter “Take-Two”), is perhaps the most well-known video game studio currently. With their roster of major intellectual property rights spanning from Grand Theft Auto, Red Dead Redemption, to Borderlands, Take-Two continually dominates the world gaming market. Besides the aforementioned games listed, Take-Two may be best known for their sports entries such as EA’s Madden, but their NBA 2K series reigns supreme across the industry.
To keep up such high market value amidst the yearly entries, 2K prides itself on incredibly detailed and accurate representations of everything from the players themselves, to the development of the courts and arenas. Within this realism, 2K Games and Take-Two found themselves involved in a dispute centered on their attention to realism of the players.
Hayden’s main argument in his suit, is that 2K Games – and by extension the video game industry at-large – infringed on the artist’s work when the company failed to license the usage of these depictions from the copyright holder. Given that the video game industry is a multibillion-dollar business, Hayden argues that this requirement would not harm the further development and growth of the industry, and this procedure would follow other existing copyright law where artists license their works to various sources of media for use.
As the legal battle has continued to the present, the most recent litigation focused on how an expert testimony could be applicable to better explain the economic aspect. Hayden has provided the expert report of a Dr. Justin Lenzo, vice president of an international economics and finance consulting firm based in Chicago. Dr. Lenzo summarized his report on two main focuses: (1) market position of the NBA 2K franchise and (2) nascent market for licensing tattoo designs for reproduction in video games.
Under the first portion of his report, Dr. Lenzo made compelling points discussing the standing that 2K has within the industry, specifically based on the realism that the franchise notoriously depicts. He further remarks that the presence of players’ actual tattoos show that even with the likely added costs necessary to code and depict such artwork for 2K those costs are miniscule and help develop their reputation further. He then suggests that the depiction of tattoos on players like LeBron, bring in greater value than that of the average player, based on name recognition and notoriety that James has worldwide.
Under his second portion, Dr. Lenzo focused on how licensing the usage of copyrighted tattoos would not prevent any real harm to video game producers, as that is a standard practice in numerous other media industries. He notes that in the video game industry, producers already license hundreds of copyrighted materials so that it can be represented in the game, so the economic benefit of licensing tattoos would likely be the same. Furthermore, he does not believe that licensing costs would harm the industry, but rather would help develop a culture and market for tattoo licensing by producers.
Ultimately, the Court found that Dr. Lenzo was qualified to speak on certain aspects of his claims, but that in other aspects the proffered testimony was far too speculative and not helpful for a jury to have presented. Specifically, he was declared an expert in the areas of market development based on economic conditions that arise or bring forth new opportunities and technologies as well as the general market position that 2K maintains in the industry itself.
Although this most recent development has simply presented a new wrinkle in what is now heading towards a five-year litigation process, it is providing clearer insight on how the Court is aiming to examine this issue, and how they may rule going forward. Based on what is being requested by Hayden, a favorable ruling for him could present an incredible opportunity for tattoo artists to collaborate with video game industries in a new and exciting manner beyond simply a representation of an already finished work. Either way, a ruling in this case will likely make large changes in copyright law and should be watched closely.
