By: Yonatan Shoshan
Edited by: Melineh Kalantar Ohanian
Tattoos have frequently appeared in U.S. courtrooms. As expressive works including words, images, symbols, or a mix—they are generally protected by the First Amendment as a form of free speech. [1] People get tattoos for various reasons: to decorate, to reflect; or to display religious beliefs, status, occupation, or identity. [2]
In recent years, copyright law and digital media have intersected in unique ways, particularly regarding athletes’ tattoos in video games. A high-profile case involved LeBron James’ tattoo artist, Jimmy Hayden, who filed a lawsuit against the makers of the NBA 2K video game series for allegedly reproducing his artwork without permission. This case highlights the complex relationship between tattoo artists’ rights and the portrayals of their work in digital formats.
The Lawsuit: Copyright and Athlete Likeness
Jimmy Hayden, a Cleveland-based tattoo artist, claimed that the tattoos he inked on superstar LeBron James were used in NBA 2K without his authorization. He alleged that the Take-Two Interactive Software Inc. and 2K Games Inc. had infringed on his copyrights by including his designs in the game. After more than six years of litigation, a jury in April 2024 ruled in favor of the game developers, finding no infringement. In February 2025, Hayden moved to dismiss his claims, effectively ending the legal dispute. [3]
Legal Arguments
Implied License
One of the central defenses in the case was the concept of an implied license. The jury determined that by tattooing LeBron James, Hayden had effectively granted him an implicit license to use and display the tattoos as part of his likeness. This meant that James, as the recipient of the tattoos, had the right to authorize their reproduction in various forms of media, including video games. Since professional athletes frequently appear in televised broadcasts, promotional materials, and digital representations, this ruling reinforces the idea that tattoos on public figures may be legally considered part of their image rather than separate, copyright protected works. [4]
De Minimis Use
The defense also argued that the tattoos’ depiction in NBA 2K was minimal and did not constitute significant copying. The doctrine of “de minimis use” is when the use of a copyrighted work is so trivial that it does not warrant legal concern, it does not amount to infringement. Here, the tattoos were small in proportion to the overall visual representation of LeBron James in the game. [5]
Fair Use
Another defense was fair use, a legal doctrine that permits use of copyrighted material without requiring permission under certain conditions. The court analyzed factors such as the purpose and character of the use, the nature of the copyrighted work, the amount used, and the effect on the market value of the original works. Here, the tattoos were used to create a realistic depiction of LeBron James, rather than to complete with or replace the original work. The tattoos were not independently sold as separate artistic works, and because their use in NBA 2K did not decrease the market for Hayden’s work, the fair use argument played a significant role in the jury’s decision. [6]
Implications for Copyright Law and Digital Media
This case highlights the evolving challenges of copyright law when applied to tattoos. While tattoo artists hold copyright over their work, enforcing these rights becomes complex when the artwork is permanently affixed to individuals who are frequently depicted in media. The court’s decision underscores the importance of implied licenses and the broader context in which the tattoos appear.
The dismissal of Jimmy Hayden’s lawsuit against the NBA 2K video game developers marks a significant moment in the evolving discourse on copyright and digital representation. It emphasizes the need for clear agreements between tattoo artists and their clients, particularly for public figures whose likenesses are widely reproduced. As tattoos become more prevalent and video games strive for hyperrealism, this area of intellectual property law will likely continue to evolve.
[1] Anderson v. City of Hermosa Beach, 621 F.3d 1051, 1059 (9th Cir. 2010).
[2] Id. at 1061.
[3] RJ Vogt, LeBron James’ Tattoo Artist Drops NBA 2K IP Suit, Law360 (Feb. 21, 2025), https://www.law360.com/ip/articles/2298755/lebron-james-tattoo-artist-drops-nba-2k-ip-suit. [https://perma.cc/XML8-Y6M6].
[4] Blake Brittain, LeBron Tattoo Artist Denied New Copyright Trial Over Video Game, Bloomberg L. (Nov. 17, 2023), https://news.bloomberglaw.com/ip-law/lebron-tattoo-artist-denied-new-copyright-trial-over-video-game. [https://perma.cc/5CDP-F4G7].
[5] Blake Brittain, NBA 2K Must Face Copyright Trial Over Artist’s Player Tattoos, Bloomberg L. (Apr. 12, 2023), https://news.bloomberglaw.com/ip-law/nba-2k-must-face-copyright-trial-over-artists-player-tattoos. [https://perma.cc/QG8X-DC6P].
[6] Id.
