A tattoo artist has successfully sued WWE and 2K Games for copyright infringement, over Randy Orton’s tattoos in WWE 2K Video games
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In April 2018, Catherine Alexander, an Illinois tattooist filed a suit against WWE Entertainment and 2K Games. The artist argued the tattoos she applied to Randy Orton were her original designs, and the developers didn’t have permission to use them in WWE 2K16, WWE 2K17 WWE 2K18.
When she approached WWE in 2009, they offered her $450 for “extensive rights to use and reproduce the tattoo designs on WWE products” — an offer that she declined. In 2015, Alexander “submitted applications to register copyrights on each of the tattoos” she applied on the professional wrestler.
WWE invoked a motion to dismiss claiming that Alexander “fails to state a claim for copyright infringement under because (1) she does not hold certificates of registration for the tattoos which is a prerequisite to filing suit, and (2) the Amended Complaint is impermissibly vague.”
The United States Copyright Office Register rejected Alexander’s application to register a Bible verse tatto arguing that “it lacked the authorship necessary to support a copyright claim.”
Last week, Reuters reported that Alexander had been awarded her case. Despite 2K arguing the tattoos fell under fair use, using them to accurately recreate Orton rather than for Alexander’s designs, the jury awarded Alexander $3,750 in damages due to “actual losses” the artist was entitled to recover. However, as none of the games’ profit were a direct result of the tattoos, she was not compensated any further.
Alexander’s lawyer, Anthony Simon of Simon Law Firm, told Reuters, “We didn’t win a bunch of money, but that’s never what the case was about.” He claims the case may set a precedent for tattoo copyright.
Tattoo copyright became a subject of discussion in 2011, as Mike Tyson’s tattoo artist attempted to sue Warner Bros. over Part 2: The Hangover,due to one of the characters sporting Tyson’s iconic face tattoo. Warner Bros. reached a settlement in the same year.
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2K sued Solid Oak Sketches in 2016 over tattoos of Kenyon Martin, Kobe Bryant, and LeBron. DeAndre, Eric Bledsoe, and DeAndre Jordan were all involved. NBA 2K16. 2K may win the case in 2020.
At the time James declared, “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.”
U.S. District Judge Laura Taylor Swain noted that the game featured only a few tattoo-wearing characters. But, she claimed that tattoos were difficult to spot during gameplay. They also don’t appear in any marketing material.
“The Tattoos only appear on the players upon whom they are inked, which is just three out of over 400 available players,” Swain argued at the time.
She added, “The undisputed factual record shows that average game play is unlikely to include the players with the Tattoos and that, even when such players are included, the display of the Tattoos is small and indistinct, appearing as rapidly moving visual features of rapidly moving figures in groups of player figures.”
“Furthermore, the Tattoos are not featured on any of the game’s marketing materials,” concluded the District Court Judge.
Swain also added “Here, the undisputed factual record clearly supports the reasonable inference that the tattooists necessarily granted the Players nonexclusive licenses to use the Tattoos as part of their likenesses, and did so prior to any grant of rights in the Tattoos to Plaintiff.” She even described the supposedly copywriter material itself as “De minimis,” essentially branding the matter as trivial.
Yet, WWE and 2K’s loss over Orton’s tattoos may upend the precedents that case set. WWE and licenses may need to seek out tattoo artists when using the likeness of “Wrestling Superstars” for video games, toys, and more. The matter may boil down to if accurate recreation of a detail most players won’t see — unless they are seeking it out — is a selling point for a sports video game.