Tattoo artist brings copyright infringement claim against game publishers

WWE and 2K Games (publishers of video games) are in the midst of a copyright infringement lawsuit relating to tattoo designs reproduced in their video games. Catherine Alexander, the tattoo artist to WWE Wrestler Randy Orton, has brought the infringement action on the basis that her tattoo designs have been replicated on his digital character.

In the US District Court for the Southern District of Illinois, Alexander complained that her tribal tattoo designs are being used commercially without her consent. Alexander has previously declined a $450 offer by WWE for extensive rights to use and reproduce the tattoo designs on various WWE products. Since declining the offer, Alexander has noticed that multiple video games released by 2K Games have featured Orton and his tattoos in a way that is the same or substantially similar to her copyrighted designs.

In coming to its decision, the Court will not only have to question whether 2K Games and the WWE have actually copied Alexanders' work but will also have to assess whether a substantial similarity exists between the original tattoos and the digital design. To establish a substantial similarity, the Court must be satisfied that an average person would recognise that the allegedly copied work has been taken from the author's work.

This is not the first time that 2K Games have been accused of copyright infringement. You can read an article on this here.

The notion of copyright in tattoos is an area that is yet to make its way to trial; most cases in this area have been settled outside of Court.  That said, the settled Whitmill v Warner Brothers case may shed some light on this area with the Judge in this case stating, "Of course tattoos can be copyrighted. I don't think there is any reasonable dispute about that".

If you have any questions on the above, please do not hesitate to contact the team at McDaniel & Co. on 0191 281 4000 or legal@mcdanielslaw.com.