Randy Orton’s Tattoo Artist Sues Take-Two For Using Her Designs In WWE Games

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Randy Orton’s Tattoo Artist Sues Take-Two For Using Her Designs In WWE Games
Screenshot: Take-Two / DBEATZ, Fair Use

Take-Two and World Wrestling Entertainment are headed to trial after a judge ruled WWE 2K games copied the work of an artist responsible for some of pro wrestler Randy Orton’s tattoos.

Orton’s arms are fully inked from shoulder to hand, an intrinsic part of the four-time World Heavyweight Championship belt holder’s stage appearance. According to The Hollywood Reporter, those designs include tribal tattoos, skulls, a bible verse, and a dove and rose, all of which are the work of artist Catherine Alexander. She’s now suing Take-Two and WWE for reproducing her work in video games without her permission.

“[A]n issue of material fact exists as to whether Alexander suffered actual damages based on the value of the infringing use,” Illinois federal judge Staci Yandle wrote in a court order over the weekend. What that means is that the lawsuit will now go to trial for a jury to decide if the appearance of the tattoos in WWE 2K16, 17, and 18 amounts to copyright infringement and if so how much money the video game publisher will owe Alexander as a result.

While Orton licensed his likeness to WWE which in turn licensed it to Take-Two, what’s at issue is whether Alexander retains some rights to the tattoos once they start being reproduced outside of Orton’s body. One example of this is a faux-sleeve with Orton’s tattoos on it WWE was apparently thinking of selling in 2009. According to her deposition, Alexander approached the organisation about it at the time and someone in its legal department reportedly laughed in her face before eventually offering her $US450 ($632), which she declined at the time while still making clear she hadn’t given WWE permission to reproduce her designs. 

Take-Two faced a similar lawsuit back in 2016 over LeBron James’ tattoos in the NBA 2K games. It won that case earlier this year with a judge deciding that the in-game tattoos were too hard to make out to be considered obvious copies of the originals, and also that tattoos were part of James and the other players’ likenesses, giving them the right to licence it along with their image to the NBA and Take-Two.

That seemed to settle the issue, but the fact that a similar dispute is now headed to a jury trial could lead to a different outcome in the WWE 2K case. Or Take-Two could simply use some small portion of the profits from its microtransaction-riddled games to settle out of court.

Comments

  • When has damages ever mattered in copyright infringement? The hard on for going after movie piracy in the early 2000’s was testament to that.

    Also pretty sure there were issues with Mike Tyson’s face tattoo. I think the Hangover movie got in trouble for that.

    • Mike Tyson’s tatoo was different cause they reproduced it onto another person and made it a core part of the sequal comedy and promotional material for the sequel.

      In the WWE example here they are not exclusively reproducing the tattoo alone, but the wrestler as a whole person… who has rights to his own image and therefore the tattoo on his arm. So there shouldn’t be a case… or if it is not settled, well the wrestler is going to end up being written out of WWE for being too much trouble and costly to deal with.

      If the tattoo is reproduced individually as a cosmetic you can slap on any custom made character and/or sold as a microtransaction… then the artist has a case.

      • On the other hand you’ve got cases like CM Punk, where the games have intentionally omitted some of his tattoos (e.g. the Pepsi logo). The developers clearly didn’t think that WWE had the rights to license reproduction of the tattoos.

        • Pepsi is a Trademarked logo though. Completely different realm of copywrite law.

          The question is whether the tatoo design itself can be trademarked and frankly that shit will open up a legal can of worms in the industry itself as it leaves multiple parlors open for litigation since tattoos come in distinct styles and one can reasonably argue x parlor is copyjng y parlors style hence they should get royalties.

          • Actually what it comes down to is whether they use the tattoo exclusively as part of his likeness, or whether they use it as a cosmetic that can be added to a custom character. The former is included in the license to replicate his likeness, and therefore not subject to a separate copyright by the original artist, though she may have some claim to compensation from the wrestler rather than the game company for him allowing replication of the art as part of his likeness without consultation or royalties. It would be an interesting look into the contractual obligations involved in becoming a living canvas for an artist. On the other hand, using it as a cosmetic would be a replication of the artwork itself outside of the likeness, and therefore subject to its own copyright, in which case she definitely has a case.

      • I guess she could argue that they could just as easily have him in the game without the tattoos. Similar to the Tyson tattoo – they’re actually reproducing the tattoo on another object (ie a 3D model), so it’s different to, say, TV where they’re just displaying the original tattoo on the guy himself. Her argument may be that they should create the model with no / different tattoos rather than use her designs.

        My question would be around whether Orton paid her to design the tattoo for him. If so then he could justifiably claim to be the owner instead of her. If she did the design herself and he just paid for the process of physically applying it to his body then she might still be able to claim ownership of the design.

  • The tattoos have become part of Randy’s likeness. Part of his brand, if you like. He paid the tattoo artist for those designs. They’re his now. If the tatts are a trademark, then they’re his trademark, not the tattoo artist’s.

    The game is reproducing his likeness, which he owns – tattoos and all.

    I’m sure Coke, McD’s and BMW don’t have to get permission from the artists they paid for their logos every time they use them.

    If the judge finds in the artist’s favour, imagine the can of worms that opens. Who designed his costume? The chairs? The lights? The video screens? That shade of green? In every game, movie, TV show, photograph, painting. Ever.

    • The tattoo designs could belong to Orton if it was considered a work for hire. This article seems to indicate that wouldn’t be the default without a contract saying as much:

      https://www.ipwatchdog.com/2018/07/26/copyright-tattoos-who-owns-your-ink/id=99500/

      The artist is obviously giving up some rights when they agree to place their work on someone’s body: they can’t reasonably expect that person to avoid getting photographed for the rest of their life, for instance. Having that person commercially license out the image as part of a high resolution body scan is another matter though.

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