Catherine Alexander is the tattoo artist of renowned World Wrestling Entertainment (“WWE”) superstar Randy Orton. Alexander has brought a claim for copyright infringement against the WWE and Take-Two Interactive (the company behind the games WWE 2K & WWE 2K Battlegrounds) for copying her tattoos in those games.
The crux of the claim seems to be whether Alexander licensed Orton to display the tattoos she inked. It is unclear whether Alexander and Orton agreed on any specific terms in relation to Orton’s famous sleeve tattoos.
The value that is afforded to tattoo works within a video game environment has been contested in the past, with producers arguing that consumers do not purchase a game for the enjoyment of tattoos. However, it has also been argued that consumers purchase a game for its authenticity to its characters and the appearance of these characters, and that the tattoos contribute to this. It is thought that the WWE would not accept having its wrestlers depicted in a game without their detailed tattoos or hairstyles, as this would clearly affect the authenticity of the game, which would ultimately affect sales.
There is a disconnect there. As the WWE argues that the tattoos are immaterial details for the purpose of having to license them from Alexander, it should follow that it would not mind having to scrub them from the game.
The Illinois federal judge ordered a partial Summary Judgment in favour of Alexander, but has deferred the questions relating to copying of the tattoos to a jury trial. This may be an up-hill struggle for Alexander: Take-Two Interactive has already been involved in an identical case of copyright infringement of the tattoos on NBA players LeBron James, Keyon Martin and Eric Bledsoe. The Judge held in that case that the use of the tattoos on the video games were not similar to that of what was on the body of the NBA players, and the Take-Two Interactive likely had fair use.
Whether this will have the same outcome is to be determined.
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