In a copyright infringement case in federal court in Ohio, a tattoo artist sued a video game company for depicting NBA players adorned with his copyrighted tattoos. The defendants argued that their use of the tattoos fell under the “fair use” rules, but the court noted that one of the factors to be considered was the “effect of the use upon the potential market for or value of the copyrighted work.” There were currently no incidences of tattoo artists licensing their designs for video games. The plaintiff brought in an expert from a large global consulting firm who was to testify on various matters, including whether the defendants benefited financially from reproduction of the tattoo designs. The expert was also to testify as to the likelihood of new markets forming, but, in a Daubert challenge, the court ruled that he was outside his area of expertise when he opined about the inevitable potential market for the licensing of tattoos for video games. The court excluded any testimony by the expert in regard to that but allowed his testimony on other matters.

The case is Hayden v. 2k Games, Inc., 2022 U.S. Dist. LEXIS 139184, and a case analysis and full opinion are available on the BVLaw platform.