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`UNITED STATES DISTRICT COURT
`NORTHERN DISTRICT OF OHIO
`EASTERN DIVISION
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`CASE NO. 1:17CV2635
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`SENIOR JUDGE
`CHRISTOPHER A. BOYKO
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`OPINION AND ORDER
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`JAMES HAYDEN,
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`Plaintiff,
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`vs.
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`2K GAMES, INC., et al.,
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`Defendants.
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`CHRISTOPHER A. BOYKO, SR. J.:
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`This matter comes before the Court upon the Motion (ECF DKT # 91*SEALED &
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`ECF DKT #92*PUBLIC VERSION) of Plaintiff James Hayden to Exclude the Expert
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`Testimony of Dr. Ian Bogost. For the following reasons, the Motion is granted in part and
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`denied in part.
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` I. BACKGROUND
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`Plaintiff James Hayden filed his original Complaint on December 18, 2017. His
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`Fourth Amended Complaint was filed on August 19, 2019, alleging copyright infringement by
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`Defendants 2K Games, Inc. and Take-Two Interactive Software, Inc. Defendant Take-Two is
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`a worldwide developer, publisher and marketer of interactive entertainment and video games.
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`Case: 1:17-cv-02635-CAB Doc #: 158 Filed: 07/11/22 2 of 8. PageID #: 13250
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`Plaintiff alleges that he is the tattoo artist who inked the copyrighted Tattoos on NBA players
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`Danny Green, LeBron James and Tristan Thompson, individuals depicted in Take-Two’s
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`popular basketball simulation series NBA 2K.
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`Ian Bogost, Ph.D., provided his Expert Report and Declaration on behalf of
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`Defendants on May 27, 2021. (ECF DKT #91-2*SEALED). Dr. Bogost is a Professor and
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`Director of Film & Media Studies and a Professor of Computer Science & Engineering at
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`Washington University in St. Louis. Previously, he was the Ivan Allen College Distinguished
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`Chair in Media Studies, Professor of Interactive Computing, Professor of Architecture, and
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`Professor of Business at the Georgia Institute of Technology. He holds a Ph.D. from the
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`University of California, Los Angeles. He is internationally recognized as a key figure in
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`game studies, including design and criticism. He has published ten books on the history,
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`structure, design, and role of video games and related digital culture.
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`In addition to his academic work, Dr. Bogost has personal experience in the video
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`game industry. He is the co-founder of Persuasive Games, an award-winning video game
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`studio. He also works as an independent game developer and his games have earned him
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`multiple awards. Dr. Bogost has been named a Digital Games Research Association
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`Distinguished Scholar and a Higher Education Video Game Alliance Lifetime Fellow.
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`Defendants retained Dr. Bogost to provide his opinion on these issues:
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`a). Is there any technical difference between reproducing the image of a person in a
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`video game in comparison to a digital photograph, television program, or film;
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`b). To what extent are the tattoos that Plaintiff James Hayden (“Plaintiff”) asserts that
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`he inked on the NBA players LeBron James, Danny Green, and Tristan Thompson (the
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`-2-
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`Case: 1:17-cv-02635-CAB Doc #: 158 Filed: 07/11/22 3 of 8. PageID #: 13251
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`“NBA Players”) and that Take-Two has infringed (the “Tattoos”) observable in the
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`NBA 2K series;
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`c). How is NBA 2K generally played, and what would an average player see and hear
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`in doing so;
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`d). Is there a market for licensing tattoos as they appear in real life for use in video
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`games.
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`Dr. Bogost summarizes his opinions in this way:
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`First, there is essentially no difference between the replication of the NBA
`Players’ images with a digital camera, whether for a static or motion picture,
`and the rendering of the NBA Players’ likenesses in NBA 2K. Both involve
`making a digital file of electronic information to reproduce an image of the
`NBA Players.
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`Second, beyond digital photographs, video games have commonalities with
`other forms of audio-visual media, like films and television, such that many of
`the same factors that would be considered in determining whether something is
`observable in a film or show also would be considered in determining whether
`something is observable in a video game. Because video games are interactive
`computer programs, however, they have many additional numerous
`components that make any given element of the game even less likely to be
`observed.
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`Third, NBA 2K is a highly expressive video game that simulates the sport of
`basketball. As a result, an average player will see and hear a huge number of
`visual and auditory elements as he or she plays the game.
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`Fourth, whether considered in terms of NBA 2K’s audio-visual display or the
`data contained in its computer program, NBA 2K is a massive video game. As
`a result, by any measure, the Tattoos are a fractional, fleeting part of NBA 2K.
`In fact, many times the players on whom the Tattoos are inked will not be
`among the players selected for a game, meaning that the Tattoos will never
`appear. Even when the Tattoos do appear, because the typical smartphone,
`computer or television screen is small compared to the actual size of a
`professional basketball player, the Tattoos will appear approximately
`1.11–10.3% the size that they appear in real life. Each Tattoo also is only one
`of a plethora of other visual and auditory elements (including other tattoos) in
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`-3-
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`Case: 1:17-cv-02635-CAB Doc #: 158 Filed: 07/11/22 4 of 8. PageID #: 13252
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`NBA 2K. And the Tattoos are hard to observe due to their obstruction by other
`game elements, because they often appear out-of-focus, and because players on
`whom the Tattoos appear move quickly in the game. Any manipulation of
`NBA 2K to make the Tattoos more observable, in practice, is not typical of the
`average user and ultimately ineffectual.
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`Fifth, each Tattoo would constitute 0.000496%–0.000515% of the data in NBA
`2K16–2K20’s computer program and 0.0006%–0.0015% of NBA 2K Mobile’s
`computer program.
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`Finally, there is no market for licensing the Tattoos for inclusion in a video
`game. This is clear from the fact that Plaintiff admits that he is not aware of
`any video game that has ever licensed rights to tattoos, including from Plaintiff
`himself. It also is supported by the fact that Take-Two’s use—incidental,
`fleeting use on the players on which the Tattoos are inked to increase NBA
`2K’s realism—is not something that reasonably would be anticipated to be
`licensed for use in a video game. It also is supported by the fact that NBA
`players have been depicted with the tattoos they bear in real life in NBA 2K
`games since at least 2001, and the Tattoos were depicted in NBA 2K games for
`many years prior to Plaintiff bringing this lawsuit. Moreover, based on my
`understanding of the times that the NBA Players’ images have been produced
`in photographs, television, or on merchandise, I am not aware of any instance
`in which they have licensed their tattoos separate from their image and
`likenesses. This is also consistent with my understanding that they have tattoos
`inked by other tattooists on their bodies, none of whom have contended that
`reproducing their images or likenesses in some audiovisual medium requires a
`license and payment to them.
`(ECF DKT #91-2*SEALED at 5-7).
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`In moving to exclude, Plaintiff argues that Dr. Bogost offers an opinion on how
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`“observable” the Tattoos are in Defendants’ games based on a “contrived assessment” of how
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`“ordinary” players interact with the game. Dr. Bogost repeatedly admits that he did not
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`interview a single player of any of Defendants’ games in order to arrive at his determination of
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`“ordinary” interaction. Dr. Bogost intentionally ignores various game modes and features
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`because they are not “ordinary” in his assessment. His opinion on how observable the Tattoos
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`are in Defendants’ games is not proper expert testimony; rather it is a factual issue for the jury
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`-4-
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`to decide. In addition, Dr. Bogost ventures far outside his “video game” expertise and offers
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`an opinion about the existence of a tattoo licensing market.
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`In opposition, Defendants argue that Dr. Bogost spent hours himself reviewing the six
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`relevant games and explored each of the modes in each of the games. Dr. Bogost’s goal was
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`to determine what the average player would encounter in a “typical ordinary experience” of
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`playing the game. In formulating his opinions, he also considered Take-Two’s documents and
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`deposition testimony by ten members of NBA 2K’s creative and production teams, which
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`revealed to him how playing NBA 2K mirrors the real world. Dr. Bogost’s analysis places the
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`Tattoos in the context of the larger NBA 2K game and offers opinions on how observable they
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`are in that context. Dr. Bogost considered how often the Tattoos appear, their size, the
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`average size screens on which NBA 2K is played, other audiovisual elements that may
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`obscure their view, the camera’s focus, the constant action and more. Dr. Bogost calculated
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`the percentage of the file size that includes the Tattoos and compared that number to the total
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`size of the NBA 2K computer program. Defendants contend that such a calculation is directly
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`relevant to Defendants’ de minimis use and fair use defenses and would undoubtedly be
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`helpful to a lay juror.
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`Expert Testimony
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`II. LAW AND ANALYSIS
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`Pursuant to Federal Rule of Evidence 702, an expert by virtue of knowledge, skill,
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`experience, training or education may provide testimony to assist the trier of fact to
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`understand the evidence or to determine a fact in issue if the expert testimony is based on
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`sufficient facts or data; the testimony is the product of reliable principles and methods; and
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`the expert has applied the principles and methods reliably to the facts of the case.
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`The standard set in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579
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`(1993) requires “that an expert’s opinion be based on a foundation grounded in the actual
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`facts of the case, that the opinion is valid according to the discipline that furnished the base of
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`special knowledge, and that the expert appropriately “fits” the facts of the case into the
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`theories and methods he or she espouses.” Redmond v. United States, 194 F.Supp.3d 606,
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`615 (E.D. Mich. 2016) (citing Daubert, 509 U.S. at 591-93). “[E]xpert testimony is not
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`admissible unless it will be helpful to the factfinder.” Redmond, id. Expert testimony is not
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`helpful when it is unreliable or irrelevant or “when it merely deals with a proposition that is
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`not beyond the ken of common knowledge.” Id. “The proponent of expert testimony must
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`establish all the foundational elements of admissibility by a preponderance of proof.” Nelson
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`v. Tenn. Gas Pipeline Co., 243 F.3d 244, 251 (6th Cir. 2001) (citing Daubert, 509 U.S. at 592
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`n.10).
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`The objective of Daubert’s “gatekeeping” function is to ensure the reliability and
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`relevancy of expert testimony. Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137, 152
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`(1999). The Supreme Court has held this “gatekeeping” obligation applies not only to
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`scientific testimony, but to all expert testimony. Id. at 147. Courts are not required to hold a
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`formal hearing on Daubert challenges. See Greenwell v. Boatwright, 184 F.3d 492, 498 (6th
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`Cir.1999). “[N]o matter how good” experts' “credentials” may be, they are “not permitted to
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`speculate.” Tamraz v. Lincoln Elec. Co., 620 F.3d 665, 671 (6th Cir. 2010) quoting Goebel v.
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`Denver & Rio Grande W. R.R. Co., 215 F.3d 1083, 1088 (10th Cir. 2000).
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`To reiterate, an expert may testify in the form of an opinion if it will assist the trier of
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`fact and if the testimony is the product of reliable principles and methods. Federal Rule of
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`Evidence 702; Redmond, 194 F.Supp.3d at 614-615. The Court finds, upon consideration of
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`Dr. Bogost’s Report and Declaration, that his opinions are reliable, relevant and helpful to the
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`factfinder only in part.
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`The Court agrees with Defendants that Dr. Bogost may testify as an expert on the
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`mechanics of NBA 2K and how the video games relate to other audiovisual works. Dr.
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`Bogost’s expertise in video game design supports allowing his opinion testimony on how the
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`NBA 2K games operate and are played.
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`Dr. Bogost may testify about the file size of the Tattoos as they appear in the NBA 2K
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`computer program and can compare that to the total file size of NBA 2K.
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`The Court is not persuaded by Defendants’ protests that Plaintiff wants to “cherry-
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`pick” the images, modes and views which the jury will see. At trial, both sides will be able to
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`present the games in the demonstrative manner they prefer. Each side will have an
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`opportunity to rebut the opponents’ presentation; thus avoiding the risk of an expert testifying
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`as to what the jurors can, or should, observe.
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`Dr. Bogost may not testify about what is observable to the “ordinary” user or what an
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`“ordinary” user would likely notice. Observability is “not beyond the ken of common
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`knowledge” and is properly within the jury’s sole purview. The use of an expert’s testimony
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`in this context would dangerously lend greater weight to the interpretation of demonstrative
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`evidence in the jurors’ minds.
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`Clearly, Dr. Bogost is knowledgeable about the video game industry and the marketing
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`of games. However, he bases his conclusion that there is no market for licensing tattoos in
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`Case: 1:17-cv-02635-CAB Doc #: 158 Filed: 07/11/22 8 of 8. PageID #: 13256
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`video games on his understanding that no other tattooists have sought to have their works
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`licensed nor to be paid for their use; and that no one, including Plaintiff, has pursued a
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`copyright infringement action against NBA 2K previously, even though the video games have
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`been in existence since at least 2001. Because he offers speculation only, Dr. Bogost will not
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`be permitted to opine on the market for licensing tattoos for use in video games.
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`III. CONCLUSION
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`The Court is mindful of its gatekeeping function and of its obligation to ensure the
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`reliability and relevancy of all expert testimony offered in this case. Therefore, the Motion
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`(ECF DKT #91*SEALED & ECF DKT #92*PUBLIC VERSION) of Plaintiff James Hayden
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`to Exclude the Expert Testimony of Dr. Ian Bogost is granted in part and denied in part, as
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`outlined in this Opinion.
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`IT IS SO ORDERED.
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`DATE: July 11, 2022
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` s/Christopher A. Boyko
`CHRISTOPHER A. BOYKO
`Senior United States District Judge
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`-8-
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