Nov 26, 2020

US Court gives ruling on copyright in tattoos

Last month we reported on a copyright claim that was brought by tattoo artist Catherine Alexander, whose clientele include renowned WWE superstar Randy Orton. Alexander brought a claim for copyright infringement against WWE and Take-Two Interactive (the company behind WWE 2K and WWE 2K Battlegrounds) for copying, in a digital format, five of her tattoos that she designed for Orton.

Alexander applied for a partial summary judgment on the issue of copyright, and Take- filed its own application for summary judgment on the basis that Alexander’s claim was insufficient as a matter of law. The US District Court for the Southern District of Illinois granted Alexander’s application (and in turn dismissed Take-Two’s application) because the Court found there was no dispute that Alexander held valid copyrights for her 5 tattoos and Take-Two had not obtained Alexander’s consent to then re-create the tattoos in a digital format.

Take-Two claimed that there was an implied license to use the copyrighted work as Alexander had not explicitly told Orton that the further use of the tattoos would be an infringement of her copyright, therefore allowing Orton to grant Take-Two a licence to use his likeness in the console game. Take-Two claim this “likeness” includes Orton’s tattoos. The Court rejected this defence by Take-Two.

The Court stated that Alexander now may seek damages via the license fee she should have received from Take-Two or the value of the infringing use.

This judgment is in contrast to the judgment held in the NBA 2K case from the District Court for the Southern District of New York. Effectively, on the same basis of facts, the court held in that instance that the tattoos of NBA players were fair use. Will this new judgment (although in a different district) open the flood gates for further claims?

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

Posted by: Tom Staveley in: Copyright, EU/International

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