Tattoo Artist Wants Cut of ‘NBA2K’ for Copied Ink

CLEVELAND (CN) – As video game makers hone the digital versions of basketball superstars for the franchise “NBA 2K,” a tattoo artist claims in a federal complaint that they are profiting off the unsanctioned reproductions of his original work.

A tattoo artist whose client roster includes LeBron James and Shaquille O’Neal,  James Hayden brought the complaint Monday in his home district of Cleveland.

Represented by the firm Calfee, Halter & Griswold, Hayden bills himself “as one of the world’s most talented tattoo artists,” and says his art is also celebrated in the corporate world. He notes that Nike has repeatedly sought out his work since commissioning him in 2009 to create the limited-edition sneakers Nike Air Max LeBron VII.

Hayden’s 23-page complaint describes and depicts several of the tattoos he has created over the past decade for current and former Cleveland Cavaliers stars including Lebron James, Danny Green, Tristan Thompson and Kyrie Irving.

The tattoo Hayden put on James’ right shoulder, for example, shows the name Gloria, a crown and a star floating above a lion.

Hayden also designed the a basketball player emerging from flames beneath the words “I Hold My Own,” which appears on Green’s left shoulder; and did a replica of the iconic near-touching hands from Michelangelo’s “The Creation of Adam” for Thompson. The image appears beneath the words “I Am My Brother’s Keeper” on Thompson’s chest.

Basketball fans can see these distinctive pieces when they play some of the latest versions of the “NBA 2K” video game franchise.

“Indeed, many of the tattoos featured in ‘NBA 2K16’ appear to be the result of a painstaking effort by defendants to precisely copy Hayden’s copyrighted work,” the complaint states.

The latest version, “NBA 2K18,” came out this past September, but Hayden notes that developers Take-Two Interactive Software and 2K Games upped the ante last year.

“In addition, ‘NBA 2K17’ includes a customizable ‘MyPlayer’ feature that includes over 3,000 customizable tattoos that can be moved, scaled, rotated, and placed on a MyPlayer player,” the complaint states.

The games allow players to simulate basketball games and even seasons, drafting players and controlling their game play.

“Upon information and belief, all or nearly all players of ‘NBA 2K16’ choose LeBron James to be on their team,” the complaint states.

Hayden notes that his copyrighted tattoo works are reproduced “each and every time an infringing game is played.”

“As the [avatars of] NBA players move, the display of tattoos is constantly adapted on the screen,” the complaint states.

Profits are surging. Take-Two’s revenue rose to $364.9 million for the second financial quarter in 2015, the quarter in which 2K released “NBA 2K16.” This was “a 169 percent increase over the same quarter of the previous year,” according to the complaint.

Hayden says net revenue grew 21 percent to $420 million after the release of “NBA 2K17.”

Alleging unjust enrichment, Hayden also produced a side-by-side comparison of the James avatar with and without tattoos, as depicted in “NBA 2K17” and the earlier version “NBA 2K4.”

“The inclusion of Hayden’s artwork throughout Defendants’ games creates a richer experience for the users, and contributes to the popularity of the games,” the complaint states.  “Defendants are unjustly enriched by the credit they receive for the creation of the experience, as well as the resulting sales.”

Hayden’s lawsuit comes over a year after the tattoo maker Solid Oak Sketches complained about the reproduction of its work in “NBA 2K” games. The case is still pending.

Hayden seeks an injunction and damages, alleging copyright infringement, unjust enrichment and violation of the Visual Artists Rights Act. He is represented by Daniel McMullen with Calfee, Halter & Griswold.

McMullen has not returned an email seeking comment. A representative for 2K Games declined to comment, citing a policy about pending legal matters.

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