It was reported back in 2018 that Alexander had filed a lawsuit against WWE and Take-Two, the publisher of the WWE 2K series of video games. Alexander, who has done Orton’s ink since 2002, claimed she owned the copyrights to the designs that were being used in the WWE video game. She accused WWE and 2K of copyright infringement because Orton’s tattoos were being depicted in the games. It was reported in 2018 that Alexander raised the issue with WWE in 2009, and was offered just $450 for the right to the designs. She declined that offer. WWE and 2K tried to have the lawsuit dismissed in the United States District Court of Southern District of Illinois on August 7, due to the court not having jurisdiction on them. It was reported in August 2018 how the court had decided that all discovery for the case needed to be finished by January 7, 2019, and that a settlement conference was scheduled for April 16, 2019.
In an update, The Hollywood Reporter reports that an Illinois federal judge, Judge Staci Yandle, handed Alexander a partial summary judgment this past Saturday, by determining that WWE and Take-Two had indeed copied her work for Orton. Now a jury will decide whether that rises to copyright infringement. The judge denied the defendants’ own motion for a summary judgement by deciding that certain questions are triable. Those questions include whether Alexander impliedly licensed Orton to disseminate and display the six tattoos that she inked for him.
The tattoos include tribal art on Orton’s forearm, a Bible verse on his arm, a dove, a skull, and a rose. Alexander’s original suit claimed that all of her tattoos on Orton are her original designs, and that she never gave the defendants permission to recreate them in WWE video games. She also stated that the designs, done between 2002 and 2008, are “easily recognized by his fans and members of the public.”
The Hollywood Reporter noted that Judge Yandle’s decision to set up the first copyright trial to ever focus on the unauthorized reproduction of tattoos will likely come as a surprise to those who figured the issue was resolved for the most part.
Take-Two beat a similar copyright suit last March in New York, brought by a company that claimed to own the tattoo designs featured on the bodies of NBA stars LeBron James, Eric Bledsoe, and Kenyon Martin. The judge in that case ruled that the small display of tattoos in a video game were not substantially similar to what were on the basketball players, even if the use of the copyrighted material was de minimis, and that there was a reasonable inference of an implied license, and that Take-Two also had a good case for fair use. This was seen as a complete win for Take-Two, which put some minds at ease in the entertainment industry. The Hollywood Reporter notes that even if the use of the tattoo designs were a de minimis part of the WWE 2K games, the case comes in the one circuit in the country that has not explicitly recognized a trivial-taking as a viable affirmative defense, which is unfortunate for WWE and Take-Two.
“Whether the Seventh Circuit recognizes this defense to copyright infringement claims is an open question,” wrote Judge Yandle, adding that she doubts the defense is viable generally and in this particular situation. “The defense has been successfully invoked to allow copying of a small and usually insignificant portion of the copyrighted works, not the wholesale copying of works in their entirety as occurred here.”
The judge decided that a trial is required after looking at the other defenses.
In regards to whether Orton got a license from Alexander, Orton has stated in a declaration that he understood the tattoos to be his personal expression, and was never told he would need further permission to make them visible.
“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,” wrote Judge Yandle. “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.”
The trial will also take up the defendants’ position that the video game’s use of tattoos is a copyright fair use. Regarding the fair use, Judge Yandle’s opinion stated, “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.”
The Hollywood Reporter also noted how Alexander first approached WWE in 2009 after hearing a rumor that WWE was planning to introduce a new line of faux sleeves to be worn by fans pretending to be their favorite WWE Superstars. She contacted WWE’s legal department and introduced herself as Orton’s tattoo artist. Alexander told WWE legal that she was willing to negotiate for any reproductions of her work. She claims she was laughed at by the WWE employee.
“The person laughed at me and said I had no grounds, and they can do what they want with his images,” Alexander testified at a deposition. “He is their wrestler.”
Stay tuned for updates on the jury trial. You can see the full ruling below: