Recent court decisions have provided helpful guidance on copyright infringement and tattoo designs, an issue that has spurred litigation from both virtual and real-world tattoo depictions.
In late January 2024, an Ohio federal judge dismissed four out of six tattoo copyright claims in Hayden v. 2K Games, Inc., a lawsuit brought by tattoo artist James Hayden over the realistic depiction of tattoos on basketball player avatars in the video game, NBA 2K series.1 According to U.S. District Judge Christopher A. Boyoko, Hayden failed to disclose that the four tattoos incorporated preexisting works when he registered them with the U.S. Copyright Office (several years ago).2 When previously asked to weigh in on the case, the Copyright Office stated that it “would not have registered the tattoo designs if it had known that the designs included an ‘appreciable amount’ of public domain material or material owned by a third party that the applicant did not exclude in his application for registration.”3
The validity of real-world copyrights affects how well-protected they are, even in video games. Judge Boyoko’s analysis did not focus on how 2K Games appropriated the tattoos in a virtual world, but rather how Hayden initially designed and registered them in reality. For a more detailed discussion on how Hayden v. 2K Games, Inc. falls into the broader e-gaming litigation landscape, see the prior Wilson Sonsini alert available here.
Just one day after the Hayden ruling, a California federal jury dismissed copyright infringement claims against celebrity tattoo artist Kat Von D. Similar to Hayden, the jury in Sedlik v. Von Drachenberg focused on the originality of the tattoo in question, i.e., the degree of substantial similarity to material owned by a third party (in this case, the plaintiff).4 The jury found that the tattoo of Miles Davis, created by Von D, was not substantially similar to Sedlik’s photo of Davis.5 Further, Von D’s social media posts displaying the actual photo in the background while Von D crafted the tattoo design constituted fair use.6
The developments in the cases above hold key lessons for their respective industries. In light of Hayden v. 2K Games, Inc., video game developers should continue to exercise caution around the photorealism of their games, particularly when depicting original works protected by copyright in the real world. Meanwhile, Sedlik v. Von Drachenberg seems to suggest the long-standing tattoo industry practice of reworking copyrighted images may survive legal scrutiny so long as the resulting tattoo designs are sufficiently original.
[1] https://www.law360.com/articles/1790329?e_id=6a04183c-3b33-4f8b-8057-d643dd370d56&utm_source=engagement-alerts&utm_medium=email&utm_campaign=case_updates; https://www.wsgr.com/en/insights/courts-provide-guidance-on-the-depiction-of-real-world-works-including-video-games.html#7.
[2] https://www.law360.com/articles/1790329?e_id=6a04183c-3b33-4f8b-8057-d643dd370d56&utm_source=engagement-alerts&utm_medium=email&utm_campaign=case_updates.
[3] Id.
[4] https://www.law360.com/commercialcontracts/articles/1790793?nl_pk=5fd97ec5-64c0-4777-80fe-c33d835363b0&utm_source=newsletter&utm_medium=email&utm_campaign=commercialcontracts&utm_content=1790793&read_main=1&nlsidx=0&nlaidx=0&detected=1.
[5] Id.
[6] Id.
