Take-Two Going To Trial Over Yet Another Tattoo Artist Claiming Copyright On Athlete Bodies
from the again? dept
Back in 2016, we began a series of posts about a tattoo artist suing Take-Two Software over the faithful depiction of tattoos on several NBA players’ bodies. The whole thing was fairly insane, with Solid Oak Sketches appearing to claim that because players had its tattoos on their bodies, those players no longer had the full control and ability to profit off of their own likenesses in video games. While the court in that case allowed that case to go to trial, the court also ruled in favor of Take-Two in summary judgement, ruling that fair use of course protected such depictions as a matter of art and speech with minimal copying as part of the game. What made the lawsuit particularly cringe-worthy was the implications of its argument. As I said at the time:
Put another way, it could be said that by branding the player with Solid Oak’s designs, the company seems to think it can control the players’ ability to profit off of their own likenesses. That this draws the mind to very uncomfortable historical parallels apparently was of no issue to Solid Oak.
That case should have sent a clear message to tattoo artists nationwide that such depictions didn’t constitute copyright infringement. Instead, Take-Two again finds itself in a different court hearing what is essentially exactly the same case, but this time substituting a WWE wrestler for NBA players. Catherine Alexander was Randy Orton’s tattoo artist and came to learn that Orton’s appearance in a WWE video game included depictions of those tattoos. In addition, the WWE is selling arm sleeves depicting Orton’s tattoos. This time, the court failed to get the suit against Take-Two tossed in the summary judgement phase.
On Saturday, an Illinois federal judge handed her partial summary judgment by determining that WWE and Take-Two Interactive Software, the publisher of the WWE 2K series of video games, had indeed copied her work. Now the question for a jury is whether that rises to copyright infringement. The judge denies the defendants’ own motion for summary judgment by deciding that certain questions are triable ones. Those include whether Alexander impliedly licensed Orton to disseminate and display the six tattoos she inked for him.
Take-Two may have a problem here. In the NBA2K case, the court relied on the game’s use of players’ tattoos being de minimis, thereby not causing harm to the copyright holding tattoo artist. In the Seventh Circuit, where this case is being conducted, de minimis use isn’t a factor by precedent.
U.S. District Court Judge Staci Yandle’s decision setting up the first copyright trial ever to focus on the unauthorized reproduction of tattoos will likely surprise those who figured the issue to be largely resolved.
“Whether the Seventh Circuit recognizes this defense to copyright infringement claims is an open question,” writes 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.”
Which is odd, because that isn’t how the de minimis exemption is applied in the NBA2K case. It isn’t how much of the copyrighted work you use, it’s how much that use factors into the overall protected work in which it appears. In the NBA2K case, for instance, the court noted that while the entire tattoos of players were reproduced, those images barely factored into the overall work and weren’t generally the focus of the player.
But we’re left with the same question: can a tattoo artist, even at an athlete’s request, essentially brand the player such that they can no longer profit off of their own likeness? The judge in this case seems to think that question is a matter for a jury to decide.
On the first factor of fair use, for example, the judge’s opinion states, “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.”
But that’s crazy. It isn’t how likeness rights work. And it isn’t how fair use allows for the faithful representation of reality in works of art, video games included. Hopefully Take-Two’s lawyers can drive this home with a jury.