The lawsuit pitting Randy Orton’s tattoo artist against WWE and 2K Games is headed to the courtroom. A jury will decide who is right in the dispute between Illinois artist Catherine Alexander and the two corporations. Alexander has sought compensation for her designs for many years now, starting with WWE merch that depicted the arm sleeves of their superstars. In the case of her tattoos being used in WWE video games, the Hollywood Reporter has aptly reported a partial summary judgment that would take her dispute to trial. The Illinois federal judge found that WWE and 2K were copying her work by including a realistic depiction of Randy Orton.
This will be the first case that will test the law when it comes to tattoo designs and copyright infringement. 2K beat a similar case with their NBA games last March when a New York judge determined that the small display of tattoos in-game were not substantially similar to the real life designs, and the video game makers had the rights of fair use. If that is reversed in this instance, it could come at a substantial cost to all manner of video game makers in addition to anyone else attempting to render accurate portrayals of real people in media.
The full statement from Illinois federal judge Staci Yandle is reproduced below:
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. Thus, the evidence raises a triable issue of fact as to the existence and scope of an implied license and Defendants’ motion is denied as to this affirmative defense. 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 video games. Alexander also disputes Defendants’ characterization of the size of the tattoos and maintains they are prominently displayed and clearly visible in the video games. These are material factual disputes.
No trial date is currently set, but many from across the gaming and sports worlds will certainly be watching it with great interest.