LeBron James Testifies in Video Game Suit: "I Always Thought That I Had the Right to License What I Look Like"

LeBron James - Cleveland Cavaliers v Indiana Pacers - Getty - H 2017
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LeBron James will soon be appearing in HBO's The Shop, an unscripted series where the NBA superstar talks culture and politics with others in a barbershop. Is there any chance he's violating someone else's copyrights by even appearing onscreen? That's a question for a court, specifically a New York federal one where James himself on Friday offered up a declaration.

"My understanding is that [my] tattoos are a part of my body and my likeness, and I have the right to have my tattoos visible when people or companies depict what I look like," stated James. "I always thought that I had the right to license what I look like to other people for various merchandise, television appearances, and other types of creative works, like video games."

Then turning to the matter at hand — a lawsuit brought by Solid Oak Sketches against Take-Two over the NBA 2K video franchise — James adds, "In the fifteen years since I've been playing professional basketball, this case is the first time that anyone has suggested to me that I can't license my likeness without getting the permission of the tattooists who inked my tattoos. No tattooist has ever told me I needed their permission to be shown with my tattoos, even when it was clear I was a public basketball player."

Take-Two has argued that Solid Oak's success in the lawsuit would lead to a "shakedown" anytime players appear on television. Since tattoos aren't the only things that appear fleetingly in entertainment, maybe it's an understatement.

In March, nevertheless, U.S. District Court Judge Laura Taylor Swain refused the defendant's first bid to dismiss the case. She felt more fact-finding was is in order to help her or a jury make a determination about the observability and prominence of the tattoos.

Now, Take-Two is looking to head off a trial with a summary judgment motion. The video game publisher reprises its arguments that its use of tattoos is de minimis and fair use and throws in some new issues for the judge on whether its use of tattoos was authorized or whether Solid Oak can establish the tattoos' originality.

Dale Cendali, Kirkland & Ellis litigator for the defendant, opens up her brief by proclaiming, "This is a case about protecting personal liberty and freedom of expression."

The brief (see here) goes through the development of various tattoos including those featured on the bodies of Eric Bledsoe and Kenyon Martin. It leans on the declaration from James and other NBA players. For example, James says that when he got a tattoo of a lion's head, he supplied a picture of a lion that was on the back of a deck of cards at a hotel he once stayed at. 

"I instructed the tattooist to ink this lion's head, and he followed my instructions," says James.

Cendali also writes that Solid Oak is owned by Matthew Siegler, who is not a tattooist and who pitched the tattooists the idea of using tattoos on t-shirts. Some of the tattooists are quoted including Thomas Ray Cornett, who did a couple of Martin's tattoos and says, "The position Solid Oak has taken is completely inconsistent with how I feel my work should be used, and quite candidly, I feel that Solid Oak's claims are ridiculous."

There also are arguments backed by one expert on how a win for Solid Oak in the case would harm the tattoo industry by deterring people from getting tattoos. 

"It makes no sense for the tattooists to require the players to stay in touch throughout the players’ lives so that the tattooists could grant permission every time the players commercialized their likenesses, or else risk a copyright infringement lawsuit," states the brief.

While it's probably not true that Solid Oak is demanding such, James certainly thinks there's something important at stake here. He says he granted Take-Two permission to use his likeness.

The future Hall of Famer also declares, "Each of my tattoos was created to showcase parts of my life and things that are important to me. ... My tattoos are a part of my persona and identity; if I am not shown with my tattoos, it wouldn't really be a depiction of me."