The use of tattoos in a video game for characters is usually no big deal. However, one tattoo artist is not taking the whole issue lightly.
Tattoo artist Catherine Alexander brought lawsuit against WWE, Take-Two Interactive Software, 2K Games, Inc., 2K Sports, Inc., Visual Concepts Entertainment, Yuke’s Co., Ltd. and Yuke’s LA Inc. The case is going to trial on Monday, September 26 before The U.S. District Court Southern District of Illinois. A final pre-trial hearing will take place Monday, September 19th.
PW Insider reports that over the past four years, the lawsuit alleges that all of Alexander’s tattoo work on WWE superstar Randy Orton are her own original designs and believes she owns the rights to. Alexander is suing, claiming that the defendants infringed on her copyrights and that she has never given any of the defendants’ permission to recreate them in WWE-licensed videogames.
In a ruling issued back on 9/26/20, Judge Staci M. Yandle ruled that WWE and Take-Two had indeed copied five tattoos that were Alexander’s original work that she holds valid trademarks on. Judge Yandle did deny Alexander’s request for a summary judgment (which would have been a knockout blow for her legally, setting up definite damages) citing that some of the tribal tattoos Orton has inked would not allow for a judgment, leaving it on for a jury to decide. At the time, Judge Yandle noted that while there was no question that WWE copied Alexander’s works, they have laid out three potential defenses that the jury can decide for themselves whether to agree with or not via the trial process.
There are several issues that a jury will decide, including whether Orton was automatically granted an implied license to have his tattoos recreated via WWE’s licensed products, if they would be considered copyright infringement if Orton did not have that license, whether the tattoos would fall under “fair use” (brief excerpts of copyright material may, under certain circumstances, be quoted verbatim for purposes such as criticism, news reporting, teaching, and research, without the need for permission from or payment to the copyright holder), whether the tattoos are de minmis (too trivial or minor to merit consideration legally) and whether there would be damages due to Alexander.
This is a blockbuster case to monitor since it may have ramifications for the future of video game design. Ringside News will monitor the trial.
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