In case you are a fan of authorized choices about skilled wrestlers, tattoos, video video games or video video games about skilled wrestlers with tattoos, 2020 has been an thrilling 12 months for you. This previous Spring, in Solid Oak Sketches, LLC v. 2K Games, Inc., Choose Laura Taylor Swain dismissed a copyright declare filed by a tattoo proprietor in opposition to 2K Video games for its reasonable depiction of a number of tattooed NBA gamers within the NBA 2K sequence of video video games. Whereas that call ticked off the containers for tattoos and video video games, skilled wrestlers had been conspicuously absent. Thankfully, two courts have just lately issued choices to fill that void.
The primary is a non-precedential, however nonetheless attention-grabbing Third Circuit determination, and it’s value stating its colourful identify in full: Lenwood Hamilton a/k/a Hard Rock or Skip Hamilton v. Lester Speight, a/k/a Rasta the Urban Warrior, a/k/a Augustus “Cole Train” Cole; Epic Games, Inc., Microsoft, Inc., a/k/a Microsoft Corp.; Microsoft Studios; and The Coalition. With so many aliases and nicknames, one can be forgiven for incorrectly assuming the mafia or superheroes had been concerned on this case. The truth is, plaintiff Lenwood Hamilton is an expert wrestler and former soccer participant, as is likely one of the defendants, Lester Speight, who can also be the voice actor for Augustus Cole, an alien-fighting soldier within the Gears of Conflict sequence of video video games printed by Microsoft. Microsoft additionally obtained an alias, however presumably has by no means wrestled professionally. Like other celebrities have sometimes done, Hamilton noticed a personality in a online game, on this case Augustus Cole, and felt like he was “trying in a mirror.” Accordingly, he filed a grievance alleging that the defendants had violated his proper of publicity by utilizing his likeness with out his authorization.
The district court docket granted abstract judgment within the defendants’ favor, holding that their use of the character was protected by the First Modification. On attraction, the Third Circuit thought-about whether or not the alleged depiction of Hamilton “is the very sum and substance of the work in query” or “whether or not the product containing [the plaintiff’s] likeness is so remodeled that it has turn into primarily the defendant[s’] personal expression.” The Courtroom held that whereas there have been similarities between Hamilton and Cole (e.g., pores and skin colour, facial options, hairstyles, and so forth.), no affordable jury may conclude that Hamilton is the “sum and substance” of Cole. Different variations (e.g., Cole serves within the navy and fights unique aliens, however Hamilton has apparently executed neither of these issues) confirmed that Hamilton is at most one of many “uncooked supplies from which [Cole] was synthesized.” Thus, the defendants pinned Hamilton’s claims to the mat and walked away victorious, metaphorically waving an absurdly giant belt over their heads.
The second case, Alexander v. Take-Two Interactive Software Inc., et al., pertains to the complete trifecta of authorized subjects: skilled wrestlers, video video games, and tattoos. Plaintiff Catherine Alexander filed go well with in opposition to the defendants, which embody, amongst others, online game firm Take-Two and World Wrestling Leisure, Inc. (“WWE”) for his or her roles in creating the WWE 2K sequence of video video games. Alexander is a former tattoo artist answerable for six tattoos on skilled wrestler Randy Orton. Ms. Alexander has registered copyrights for 5 of the tattoos. The WWE 2K video games comprise reasonable depictions of WWE wrestlers, together with Orton and his tattoos. Take-Two has a license from WWE to depict WWE wrestlers in its video games, and the license permits WWE to reject character designs if they’re inaccurate. Thus, had Take-Two inaccurately depicted Orton’s tattoos, WWE would have rejected his character design. Nonetheless, Alexander by no means licensed her tattoo designs to anybody, and negotiations in 2009 between WWE and Alexander for rights to the tattoos fell by means of. When Alexander noticed her designs getting used within the WWE 2K video games, she sued for copyright infringement.
Alexander moved for abstract judgment as to copying, which the court docket granted since there was no actual query that Take-Two had precisely copied the designs from Orton. Defendants additionally moved for abstract judgment, arguing that three affirmative defenses apply: (1) implied license, (2) honest use, and (3) de minimis use. The court docket discovered that there have been triable points of fabric reality relating to the scope of any implied license, because it was unclear whether or not Alexander and Orton mentioned permissible types of copying, distribution, and sublicensing. As well as, the court docket discovered that there have been disputes of fabric reality precluding abstract judgment as to honest use, together with the defendants’ goal in utilizing the tattoo designs, whether or not defendants’ use was sufficiently transformative, and whether or not there was market hurt to Alexander. Lastly, the court docket denied abstract judgment as to the de minimis use protection as a result of (1) the defendants supplied no authority exhibiting that de minimis use is a viable protection within the Seventh Circuit and (2) the defendants had copied the tattoos of their entirety.
The Alexander court docket’s conclusion appears to be at odds with the Stable Oaks Sketches determination, which had very related information and authorized points. Surprisingly, regardless of the similarities and recentness of the Stable Oaks Sketches determination, the Alexander determination doesn’t point out it. Alexander was beforehand set for trial through the week of October 19, 2020, nevertheless it has been rescheduled to February 16, 2021 resulting from COVID-19. That implies that we might want to wait no less than just a few extra months to seek out out whether or not there may very well be a budding break up between the Second and Seventh Circuits with respect to reasonable depictions of tattooed celebrities in video video games.