Copyrights
According to Hayden, he still holds the copyrights to the tattoos he placed on LeBron James’ shoulders in 2007 and 2008. He even obtained copyright registrations for them in the U.S. Hayden argued that by displaying these tattoos in the game without his permission, Take-Two was infringing on his rights.
Implied License
However, the judge did not dispute that the copyrights to the tattoos belong to Hayden. Nonetheless, the judge ruled that based on all the circumstances, Hayden had implicitly granted a license allowing Take-Two t0 use the tattoos in the video game. The court referred to this as an “implied license.” But what were those circumstances?
Hayden Aware of NBA Practices
NBA players in the National Basketball Association, the most prestigious basketball league in the world, expressly give the NBA the right to commercially license their names and likenesses to companies like Take-Two. LeBron James, too, had appeared twice in an NBA 2K video game before Hayden tattooed him. Hayden, who had previously inked other NBA players who appeared in the NBA 2K game, must have been aware of this practice. Also his claim that he—himself a basketball fan—was unfamiliar with the popular NBA 2K video game was therefore not deemed credible.
Implied license
Given this background, the judge concluded that there was an “implied license”: an unwritten permission to use a work, inferred from the circumstances and the conduct between the parties. The judge’s ruling reaffirmed what a jury had already determined in April of this year.
Freedom to Share Tattooed Body
In a statement to Reuters, Take-Two’s lawyer said the decision is very important for the entertainment industry and “for anyone who has ever gotten a tattoo and would otherwise worry about their ability to share their body with their tattoos.”
Bas Kist
