Tattoo artist Catherine Alexander has filed suit in U.S. District Court against the WWE and Take-Two Interactive, and received partial summary judgment against the companies, over the reproduction of wrestler Randy Orton’s tattoos.
As reported in The Hollywood Reporter, Alexander heard rumors about the WWE creating fabric sleeves reproducing Orton’s six tattoos as official WWE merchandise. When she approached WWE to discuss licensing concerns, she was rebuffed and informed, “He’s our wrestler.” The judge’s ruling in the case notes that WWE then attempted to buy the tattoo likeness rights from her for a pittance, $450 USD, and Alexander refused.
The partial summary judgment by Judge Staci Yandle stated that WWE and Take-Two had indeed copied Alexander’s work. However, there are questions which apparently rise to the level of requiring a jury trial. “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,” Yandle wrote in her ruling. “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.”
At present, there is currently no date set for the trial.
Food For Thought
This is not the first time Take-Two has been sued for something like this. A similar suit, centering around players in NBA 2K who had tattoos, had Take-Two claiming “fair use,” and the judge found in their favor. Moreover, the judge in that case regarded the question as a de minimis taking, something too trivial for the court to even consider. However, the Seventh Circuit (where the case is being heard) seems not to have acknowledged the precedent Take-Two has established. This case could have serious repercussions for “likeness rights” of celebrities and professional athletes being recreated in video games for years to come.