Tattoos in video games - and what the German Federal Court of Justice's “photo wallpaper ruling” might have to do with it

The depiction of tattoos of real people, mostly athletes, in video games is a recurring issue in US courts. In Germany, no such cases are known so far. The decision that has already gone down in the history of the Federal Court of Justice as the "photo wallpaper ruling" at least gives an idea of how such a dispute would end in Germany.

The Hayden vs. Take-Two Case: When Tattoo Art Goes Digital

Jimmy Hayden is a renowned tattoo artist from Cleveland. He counts several NBA stars among his clients, including Shaquille O'Neal, Kyrie Irving and, relevant to this case, LeBron James. His tattoos have been the subject of a long-running legal battle with video game publisher Take-Two Interactive, the company behind the popular "NBA 2K" series of video games.

Hayden filed a lawsuit in 2017. In his lawsuit, which was revised in 2019, he argued that the detailed reproduction of the tattoos he had engraved in several titles in the "NBA 2K" series infringed on his copyrights. 

The key legal question was: Does a video game company need the tattoo artist's permission to display the tattoos as part of a licensed likeness of the athlete? Take-Two argued that the license to use James' likeness included the right to display his tattoos. The Ohio federal jury agreed with this argument. It ruled that Take-Two's agreement to use James' likeness impliedly granted it the right to display his tattoos.

But this is not the only case of its kind. Take-Two won a similar lawsuit in a New York federal court in 2020. The case concerned the depiction of tattoos of the late basketball player Kobe Bryant and other NBA players. 

However, another case shows that the law in this area is not yet fully established: In 2022, an Illinois jury ordered Take-Two to pay damages to a tattoo artist whose work was featured on the body of wrestler Randy Orton in the "WWE 2K" game series, even though the damages amounted to only $3,750.

These differing decisions illustrate that the legal assessment of tattoos in another medium is still evolving, as tattoo artist Hayden is said to have already appealed the most recent decision.

What the "photo wallpaper rulings” of the German Federal Court of Justice have to do with it

Although there has not yet been a comparable decision in Germany regarding the depiction of tattoos in video games, the recent rulings of the German Federal Court of Justice (BGH, rulings of September 11, 2024 - I ZR 139/23; I ZR 140/23; I ZR 141/23) regarding so-called photo wallpapers could provide an indication of how such a decision would turn out in German courts.

The BGH had to deal with a number of cases concerning the display of photo wallpapers on the Internet. The cases before the BGH revolved around a company founded by a professional photographer that marketed photo wallpapers featuring his photographs. In three different constellations, these wallpapers were placed on the Internet as images by the respective defendants: A private user showed the wallpaper as a background in Facebook videos, a media agency presented a client project in which the wallpaper could be seen, and a hotel operator advertised with photos of its decorated rooms. In each case, the photographer's company took legal action against the use, seeking damages and reimbursement for the cost of the warning.

However, the BGH clearly rejected these claims and assumed "clear consent". The core consideration of the court: Anyone who places a copyrighted work such as a photo wallpaper on the market without special restrictions must expect certain usual uses. Today, this includes the fact that the wallpaper can be seen in photos or videos posted on the Internet - not only in a private context, but also in a commercial context.

It is particularly interesting that the BGH did not limit these considerations to the direct purchaser of the wallpaper. Third parties, such as the media agency in this case, may also rely on implied consent if their use is considered customary. The court emphasized that the author is, of course, free to prohibit certain uses - but he must then also make such restrictions clear, for example through corresponding contractual agreements or clearly visible reservations of rights.

These considerations should also apply to celebrity tattoos in video games. A tattoo artist also takes his or her work "out into the world" without any particular restrictions - moreover, he or she applies it to the skin of a person who naturally moves around in public and is photographed or filmed doing so. In the case of prominent sports stars such as LeBron James, this media presence is even an essential part of their professional activity. Following the logic of the BGH, a tattoo artist would therefore have to expect that his work would be depicted together with its "wearer" - be it in traditional media, on social networks, or even in video games.

It is up to the authors of the tattoos to regulate their works in explicit agreements with their "objects", the tattooed persons. The extent to which such regulations would then be effective, particularly with regard to the personal rights of the tattooed person, offers potential for further decisions by the BGH.

Fabian Eckstein