Depicting Randy Orton’s Tattoos in a Video Game Could Be Copyright Infringement–Alexander v. WWE 2K
[To be honest, I’m struggling to blog new IP law developments during a time when we may be witnessing the last days of the American republic. Candidly, I’m hoping you won’t distract yourself from the urgent existential threats our country faces. Maybe file this blog post away to read after the elections?]
This case involves wrestler Randy Orton and his tattoos. Catherine Alexander inked 6 tattoos for him between 2002-08. Orton and Alexander did not have a written license agreement. Alexander says she is OK with Orton appearing in photos or videos, but that she “would ‘take issue’ if any client were to replicate her tattoos in a manner other than in photos or videos, including using her tattoo works to print and sell other commercial items, such as T-shirts.”
Take-Two makes videogames, including WWE 2K, a “realistic” wrestling videogame. (I note the irony of wrestling’s overall fakery and the videogame’s desired realism). WWE 2K includes Orton and his tattoos. Orton licensed his personality to WWE, which licensed it to Take-Two. The license requires Take-Two to depict Orton accurately, including his tattoos. Thus, Take-Two could not have omitted or obscured Orton’s tattoos. In 2009, Alexander reached out to Take-Two about licensing Orton’s tattoos, but the parties never came to terms (the opinion doesn’t address statute of limitations or laches, but those defenses are functionally dead in copyright law anyways).
[Get ready for some cringe…this opinion is UGH.]
Wrongful Copying. “Defendants admit to copying Alexander’s tattoos in their entirety in order to depict Orton in WWE 2K as he appears in real life.” Summary judgment to Alexander on this point.
Implied License. “It is unclear whether Alexander and Orton discussed permissible forms of copying and distributing the tattoo works or whether any implied license included sublicensing rights such that Orton could give permission for others to copy Alexander’s tattoo works.” That question goes to a jury.
Fair Use. This issue also goes to the jury.
- Transformativeness. “there is a factual dispute in this case as to Defendants’ purpose in using the tattoo works. Alexander contends she created the tattoos for the purpose of displaying them on Orton’s body and that Defendants used the tattoos for the same purpose; to display them on Orton’s body in the videogames. Alexander also disputes Defendants’ characterization of the size of the tattoos and maintains they are prominently displayed and clearly visible in the videogames.”
- Nature of the work. “The art of creating a tattoo naturally entails creative and expressive efforts. Although Orton gave Alexander direction and input as to the tattoos, it was Alexander’s creativity and design choices that were ultimately inked.”
- Amount taken. “Defendants assert that it was necessary to copy each tattoo in its entirety in order to depict real life accurately. But Alexander argues that Defendants made no attempt to copy just those elements of the tattoo works necessary to create the realism Defendants’ sought. Although wholesale copying does not preclude fair use per se, it militates against a finding of fair use.”
- Market effect. “Defendants argue that Alexander is attempting to create a market in this case that has never existed before and would not be reasonable or likely to be developed – a market for licensing tattoos. Alexander maintains that Defendants’ use will create a trend whereby other video game manufacturers, and others similarly situated, take advantage of and fail to pay licensing fees for copyrighted works (above and beyond just tattoos) unilaterally deemed necessary to create ‘realism.'”
Fair use often depends on a judge’s norms, and this judge didn’t give any breaks to the defendant at all.
De Minimis Use. The court wonders if the 7th Circuit even recognizes this doctrine. “Given the overlap between the defense and actionable copying, which Alexander is not required to prove to sustain her case in this circuit, the Court doubts the defense is viable generally.”
Damages. “Defendants argue the evidence establishes that consumers do not purchase WWE 2K because of the tattoos. But other evidence shows that consumers did purchase WWE 2K for its authenticity to the wrestlers’ appearance. In particular, Defendants admit that consumer response is a consideration to their development of WWE 2K and the design choices made. They also acknowledge that consumers expect there to be authenticity in the videogames and that WWE would have rejected Orton’s videogame persona if it appeared without his tattoos or appeared with tattoos that were different than Orton’s actual tattoos. Additionally, Alexander’s expert addresses the importance of authenticity to drive sales and profits. Thus, an issue of material fact exists as to whether Alexander suffered actual damages based on the value of the infringing use.“
Two things about this opinion stand out. First, this judge adopted a pretty absolutist view of copyrights. Once Alexander established her prima facie case of infringement, the judge became tone-deaf to valid policy concerns about the rote application of copyright law to Orton’s body. Thus, the judge seems to endorse that, by getting a single tattoo, a customer forevermore may permanently waive his/her freedom to appear in videogames and maybe other media. We all know tattoos have permanent consequences, but that’s an extreme outcome.
[I once again note: if you’re getting a tattoo, you probably should get a written license agreement from the tattoo artist. Maybe get the license agreement inked on your body as a 2-for-1 tattoo special. Prof. Aaron Perzanowski, one of the world’s leading experts in tattoo copyright law, has repeatedly disagreed with my advocacy for written tattoo license agreements because it conflicts with the norms in the tattoo artist community. Still, rulings like this show the danger of weaponized tattoo copyrights.]
Second, the judge didn’t engage with the adverse precedent–including, most conspicuously, the Solid Oak v. 2K ruling from March that reached a directly contrary result (including defense-favorable findings on all three defenses that the judge punted on here). A number of rulings this year have endorsed the freedom of videogame makers to realistically depict the world, including a band member’s “signature move” and Humvee vehicles in a shoot-em-up game. This ruling is out of sync with that jurisprudence, for what seemed like wholly unpersuasive reasons.
Because I think this opinion is so out-of-step with the law and the precedent, I hope Take-Two will find some relief on appeal if it doesn’t win the trial.
Case citation: Alexander v. Take-Two Interactive Software Inc., 3:18-cv-00966-SMY (S.D. Ill. Sept. 26, 2020)
Prior Tattoo Copyright Blog Posts
- Videogame Doesn’t Infringe Tattoo Copyright By Depicting Basketball Players–Solid Oak Sketches v. 2K Games
- Copyright and Tattoos: Hangover II Injunction Denied, But the Copyright Owner Got Some Good News Too–Whitmill v. Warner Bros.
- Tattoo Advertising/Human Billboards
- Copyright in Tattoos