Copyright infringement suit over tattoos on professional wrestler in video game. ALEXANDER vs. TAKE-TWO

Copyright infringement suit over tattoos on professional wrestler in video game. ALEXANDER vs. TAKE-TWO

A copyright is a set of exclusive rights granted to the creator of a new work of expression.  When a creator fixes a work in a tangible medium they are automatically granted a copyright to the work.  The owner of a copyright is granted the exclusive right to reproduce, distribute, perform, display, transmit and make derivative works based on the original, if someone other than the copyright owner attempts to exercise one of these exclusive rights that can be considered copyright infringement.  When a copyright owner feels that their copyright is being infringed on they can request an injunction and damages.  But, an accusation of copyright infringement is just the beginning of the process.

Inspiration for a new work is frequently drawn from an earlier work.  Therefore copyright law will excuse a certain amount of borrowing from earlier works.  When a significant portion of a new work borrows from an old work, the concept of fair use is relevant.  When a trivial portion of an old work appears in a new work, the concept of De Minimis Use becomes relevant.  Further complicating matters, the actions of a copyright owner may imply that the copyright owner has given permission to use the work, this is known as an implied license.

To prove copyright infringement, a plaintiff must establish (1) ownership of a valid copyright, and (2) copying of constituent elements of the work that are original.  This kind of copying can be proven either with direct evidence that the defendant actually copied the work, or by showing that the defendant (i) had access to the work and (ii) that the works are substantially similar.  This is all based on the assumption that the defendant’s copying was done without permission.  If it turns out that the defendant had a license to copy the work, either explicit or implied, then copyright infringement has not occurred.

A feature of the United States federal court system is that district courts are only bound by the precedent of their circuit courts. This means that federal courts in different circuits can arrive at different conclusions even though the fact patterns are similar.  Reviewing how different courts apply the law to similar fact patterns help develop a better understanding of the law.

CATHERINE ALEXANDER, vs. TAKE-TWO INTERACTIVE SOFTWARE, INC., 18-cv-966 (S.D.IL 2018) is a case where a court came to a different conclusion than its sister court with a similar fact pattern.

Plaintiff in this case is Catherine Alexander is a former tattoo artist who inked six tattoos on WWE professional wrestler Randy Orton between 2002 and 2008.  The tattoos include tribal tattoos on Orton’s forearm, a Bible verse on his arm, a dove, a rose, and a skull.

Defendant is the creator of the WWE 2K series of video games. WWE 2K is a realistic depiction of WWE wrestling and includes elements that appear in real world wrestling. To depict Orton in WWE 2K as he appears in real life, Defendant replicated his likeness, including the Alexander tattoos. Defendant accomplished this by copying Orton’s
tattoos and reproducing them digitally in the video games.  Plaintiff sued for copyright infringement in 2018, two years later the case is set to go to trial.

Defendant moved for summary judgement on three grounds (1) the use of the tattoos was authorized by an implied license; (2) the fair use doctrine insulates their utilization of the tattoos in the WWE 2K videogames; (3) and the tattoos are a de minimis part of WWE 2K.  The court found that there were triable issues of fact for each of the tree grounds and denied the motion for summary judgement.  The case will now go onto a jury to try the facts.

This case has a similar fact pattern to SOLID OAK SKETCHES, LLC v. 2K GAMES, INC., 1:16-CR-00724 (S.D.NY 2020).  In that case tattoos created by the Plaintiff were applied to NBA players whose likeness appeared in a video game.  In that case the court found that there was not a triable issues of fact for implied licenses or di minimis use and granted summary judgement in favor of the defendant.

These cases demonstrate that even given similar fact patterns there is no guarantee a court will favor one party over the other.

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