On Monday, the court overseeing a dispute between tattoo artist James Hayden and defendants 2K Games Inc. and Take-Two Interactive Software Inc. (together Take-Two) opined that Take-Two’s expert witness could testify about some aspects of its popular basketball video game series, NBA 2K, in the copyright trial.
In his operative complaint, Hayden alleged that Take-Two committed copyright infringement by depicting tattoos he inked on NBA players Danny Green, LeBron James, and Tristan Thompson in the video game.
The eight-page opinion authored by Judge Christopher A. Boyko considered the reliability and relevance of expert witness Ian Bogost, Ph.D., a professor at Washington University in St. Louis associated with both its Film & Media Studies and Computer Science and & Engineering departments. The opinion noted that Bogost is also the co-founder of the award-winning video game studio Persuasive Games.
Take-Two hired Bogost to opine on how NBA 2K is played, what an average player sees and hears while playing, to what extent the contested tattoos are visible in the game, and whether there is a market for licensing tattoos as they appear in real life for use in video games, among other things.
The court greenlighted Bogost’s opinion as to game play. Judge Boyko also said that Bogost may testify about the size of the tattoos as they appear in NBA 2K, which the expert estimated at between 1.11% and 10.3% the size that they appear in real life. Relatedly, the court approved testimony comparing the tattoos’ file size to the total file size of NBA 2K, which Bogost said was between 0.0006% and 0.0015% of NBA 2K Mobile’s computer program and even less of its 2K16 to 2K20’s computer program.
The court rejected two aspects of the opinion in its capacity as “gatekeeper.” Judge Boyko said Bogost may not opine about what an ordinary user would likely notice while playing the game. “Observability is ‘not beyond the ken of common knowledge’ and is properly within the jury’s sole purview,” the opinion said. Second, Judge Boyko ruled that Bogost’s opinion that there is no market for the licensing of tattoos in video games was based on speculation and therefore unreliable.
The jury trial is set to begin mid-November in Cleveland, Ohio.
Hayden is represented by Calfee, Halter & Griswold LLP and Take-Two by Kirkland & Ellis LLP and McDonald Hopkins LLC.
