Picture it. It’s 2025 and you set up your game console to play NBA 2K. You pick your team. The players are recognizable, but something seems off. The team colors are okay. You can clearly see the sweat on Lebron James’ brow as he goes to the free throw line after a hard foul by Draymond Green, but yet something is missing. After careful observation, you figure it out – it’s the tattoos. None of the players have their signature tattoos. You change teams, players even, and notice the same thing. How can a game so realistic be missing the one key thing that makes the players unique? This omission opens the door to the larger and more complicated issues of autonomy, artistry, ownership, and intellectual property.

The Dispute: Tattoo As Art for Arts’ Sake or New Aged IP Propaganda?

Tattoo artists, whose designs are featured on the bodies of real-life athletes, have argued that their intellectual property is being used without compensation or permission when their tattoos are digitized in sports video games. As tattooing becomes more mainstream, many artists see their designs as unique and original works of art that should be protected under copyright laws.

On the other hand, video game developers, especially those behind sports simulators, argue that their goal is to create an authentic and realistic representation of the athletes. Since tattoos are a significant part of an athlete's identity, it seems only natural that these designs should be included in their digital avatars. However, this reliance on tattoo designs often comes with the question: is this an infringement on the rights of the tattoo artists who created the artwork?

One of the most well-known cases that sheds light on this issue involved professional athlete and tattoo artist disputes in sports games like NBA 2K. In Hayden v. 2K Games, Inc., a tattoo artist brought a copyright infringement action against the video game developer, alleging unauthorized use of his registered tattoos through the players’ likeness in the video game. Hayden v. 2K Games, Inc., 629F.Supp.3d 736, 2022 Copr.L.Dec. P 32,048. In another high-profile case, tattoo artist Solid Gold, who designed tattoos for NBA stars like LeBron James, filed a lawsuit against Take-Two Interactive, the developer behind the NBA 2Kfranchise. Solid Gold alleged that his tattoo designs, which appeared on virtual versions of LeBron James in the game, were used without his permission.

This case sparked a wave of similar complaints from other tattoo artists, many of whom saw their designs replicated in sports video games without any acknowledgment or compensation. The legal questions at play are complex, revolving around the concept of ownership—should athletes or game developers hold the rights to tattoos that were created for them? How does the new landscape of NIL effect reimaging of players and their tattoos? Should tattoo artists retain ownership over their designs, even once inked on a celebrity or athlete?

In Hayden, the jury determined 2Kgames had an implied license to use the images, seemingly setting the tone for similar suits to follow. (A California federal court ruled similarly against popular tattoo artist Kat Von D in an infringement dispute.) When an NBA player hires a tattoo artist to ink a custom design on their arm, there’s no written agreement about who owns the rights to the design. By applying the tattoo, the artist may be considered to have granted an implied license for that tattoo to appear wherever the player does—including in digital recreations like NBA2K—especially if there was no objection raised over time.

How Does this Ruling Effect You and Your Business Strategy?

• When thinking about your product or service, think about each layer of what you do/offer and what protections may be applicable.
• Determine whether your idea is completely novel, a new usage, or reiteration of someone else’s work. How does that affect protecting your brand?
• Consider the overall implications of your product or service on the intellectual property landscape
• Intellectual Property Law is Complex – you can navigate the waters alone, or you can ask an attorney for help.

If you love the idea, product, or service enough to share it with the world, protect it from the world. Yes, it can be a bit costly up front, but, in the end, the protection is worth it. Also, a good attorney will not only be able to help you apply for protection but also offer guidance on how to align it with your company’s overall strategy. Of course, if you need help with any of this, the experts at Diplomatic Enterprises are more than willing and able to help you. If you’re ready to take the leap, or you already have but want to find new ways to bolster your efforts, call or email us for a free consultation.

‍