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.

Filed Under: , , , ,
Companies: take-two, wwe

Rate this comment as insightful
Rate this comment as funny
You have rated this comment as insightful
You have rated this comment as funny
Flag this comment as abusive/trolling/spam
You have flagged this comment
The first word has already been claimed
The last word has already been claimed
Insightful Lightbulb icon Funny Laughing icon Abusive/trolling/spam Flag icon Insightful badge Lightbulb icon Funny badge Laughing icon Comments icon

Comments on “Take-Two Going To Trial Over Yet Another Tattoo Artist Claiming Copyright On Athlete Bodies”

Subscribe: RSS Leave a comment
This comment has been deemed insightful by the community.
That One Guy (profile) says:

'Strange, tattoo sales just plumetted...'

I struggle to think of a better anti-tattoo argument than ‘once you get a tattoo the one who put it there gets to decide what mediums you get to have your body appear in’, and while that’s not likely to impact many people who aren’t raking in the cash there mere idea that a tattoo means someone else has potential veto power over how and where your skin can be shown is just a tad disturbing.

Scary Devil Monastery (profile) says:

Re: 'Strange, tattoo sales just plumetted...'

"I struggle to think of a better anti-copyright argument than ‘once you get a tattoo the one who put it there gets to decide what mediums you get to have your body appear in’…"

FTFY, i think.

It’s weird, but somehow not unexpected, to have actual fucking slavery come up as a lucrative side effect of copyright in combination with body art.

This comment has been deemed insightful by the community.
XcOM987 (profile) says:

Re: Re: Re:

I was having the same thoughts myself, I would have thought logically if you paid someone to tattoo you, then you could do whatever you wanted with your body/tattoo afterwards, other than maybe sell the design to another tattoo artist. Even if you do see tattoo places copying other peoples works without issue, how many micky mouse’s, Donald Ducks, Etc. Etc. has she tattoo’d on to people and not compensated or sought permission from the rights holders if they want to go down that route.

But we all know how mental the courts can be when it comes to deciding what is right and wrong.

Scary Devil Monastery (profile) says:

Re: Re: Re:

…which would turn, by copyright law, body art something closely resembling a slave brand.

I mean, the principle and legal situation of copyright is pretty frigging clear, so as copyright law is written I see no other possible result than that the artist now, in fact, owns significant parts of the persons of those wearing the body art.

I keep saying it – "Intellectual Property" is fundamentally bankrupt in ethical and moral sense, precisely because of crap like this.

This comment has been deemed insightful by the community.
Narcissus (profile) says:

Re: Re: Re:

Just going along with the insanity here:

Could the tattooed person claim the same right that photographers have? They only have copyright on the composition, the way I understand it. Since the size, location on the body and the combination of different images is decided by the person being tattooed (usually), they could claim copyright on the composition?

Of course, this whole case is nuts. However, I can’t wait for the first lawsuit over prison tats. "I own your ass!" would have a different meaning if the copyright is granted to the artist.

This comment has been deemed insightful by the community.
PaulT (profile) says:

Re: Re: Re: Re:

I can’t imagine the full can of worms here if they want to go all the way. For example what if the wrestler gets an injury that damages the ink? Can the tattoo artist sue? What about if he puts on weight in a way that distorts the picture and makes it look bad? If someone got a skin graft that included part of the image, is that person now under contract to the artist as well?

I wish I could say that all of the above is ridiculous and would never come up, but then here we are and I don’t trust copyright worshippers not to start including some very disturbing ideas.

Scary Devil Monastery (profile) says:

Re: Re: Re:2 Re:

"I wish I could say that all of the above is ridiculous and would never come up…"

<Me, looking back at Sony’s old leaked "Indetured Serfdom" Idol contracts>

I guess both of us wish and neither of us expects the zealots in the copyright cult to refrain from defending copyright-induced slavery as a consequence of body art.

This comment has been deemed insightful by the community.
Nathan F (profile) says:

I know it is Take Two that is in the hot seat here but if I were the WWE I would be more worried about the tattoo arm sleeves they were selling. It’s one thing to faithfully depect a person in a video game, tis a whole nother matter to sell a product whose entire purpose is to depict only a part of that person’s likeness.

This comment has been deemed insightful by the community.
PaulT (profile) says:

Re: Re:

It really depends on whether the artist is really interested in recourse or if he’s just attacking the nearest cash rich target. While WWE are also a potentially wealthy target, I dare say that it will be harder for him to get a windfall from such a specific element of WEE’s business than going after the entire Take Two game franchise for containing the same art. If it’s just a cash grab, I doubt he’ll even thing about that.

But, such a case could be important in showing how far this stuff is broken. Presumably, the sleeves are being sold as part of the wrestler’s contract with WWE. Assuming they’re accurately depicted and not a generic sleeve with the wrestler’s name on it, that could open up a real can of worms surrounding how many rights to their own person and body can be signed away due to copyright law. That you cannot draw up a publicity contract with the person you’re hiring without paying an otherwise unrelated 3rd party.

I’d hope that even the most avid copyright supporters will be uncomfortable with the fact that musicians and athletes cannot own or sell their own image if someone else draws on them… Especially if the wrestler had any input into the design of the tattoos rather than just allowing the artist carte blanche to draw whether they wanted.

Scary Devil Monastery (profile) says:

"I’d hope that even the most avid copyright supporters will be uncomfortable with the fact that musicians and athletes cannot own or sell their own image if someone else draws on them…"

Hrm. I think by now whatever faith could be placed in "avid copyright supporters" is misplaced. Sony’s old "Idol" contracts of indentured serfdom indicate pretty well that actual slavery would be seen as a very positive and desirable side effect to a great many copyright cultists.

In this case the truly repugnant part in the OP is that according to copyright law it’s pretty clear-cut. The artist owns significant part of the person wearing his art.

Scary Devil Monastery (profile) says:

Re: Re:

"(They should have gotten the fine print to state that their body is still their own… what? no fine print?)"

I’d argue that most basic national charters have…strong words…about any legislation which would allow one person to own parts of another.

Then again US prisons are already de facto industrial indentured serfdom in action so we shouldn’t be surprised that copyright allows artists to partially own other people either.

Anonymous Coward says:

i,m not a copyright expert, they might say they created the tatoo,s as a work of art ,they own the designs like an artists owns copyright on a painting .
its up to lawyers to argue showing the wrestler in a game and showing his
tattoo,s is fair use .
the tatoo,s are on one wrestler are only a tiny part of the game.
ford motor company does not sue film companys because there happens to be ford cars in the background of movies .
there are many films that show people with large tattoo,s on their arms
and no one sues the film company for showing a tattoo.
No one goes to a shop and buys a video game just to see the tattoo
designs on one wrestler.

Rocky says:

Re: Should tattoo artists use spell checkers?

No, it’s just easier to copy something from a menu they got from the Chinese place down the street and tell a prospective punter that it says "Wisdom" or something else inane. The punter is none the wiser that 春捲 means springroll or that 臭豆腐 means stinky tofu, and the tattoo-artist doesn’t care – he got his money.

At least in that scenario, Take Two wouldn’t be sued for copyright infringement…

This comment has been flagged by the community. Click here to show it.

Brainulator9 (profile) says:

Relevant texts

Ets-Hokin v. Skyy Spirits Inc. (9th Cir. 2000) – upon determining that derivative works must be based on copyrightable works, and that neither the bottle nor label were copyrightable, we get this:

We need not, however, decide whether the label is copyrightable because Ets-Hokin’s product shots are based on the bottle as a whole, not on the label. The whole point of the shots was to capture the bottle in its entirety. The defendants have cited no case holding that a bottle of this nature may be copyrightable, and we are aware of none. Indeed, Skyy’s position that photographs of everyday, functional, noncopyrightable objects are subject to analysis as derivative works would deprive both amateur and commercial photographers of their legitimate expectations of copyright protection. Because Ets-Hokin’s product shots are shots of the bottle as a whole-a useful article not subject to copyright protection-and not shots merely, or even mainly, of its label, we hold that the bottle does not qualify as a "preexisting work" within the meaning of the Copyright Act. As such, the photos Ets-Hokin took of the bottle cannot be derivative works.

Latimer v. Roaring Toyz (11th Cir. 2010):

Further weakening defendant-appellees argument is the fact that the ZX-14 motorcycles were the subject matter and primary focus of Latimer’s photographs. Latimer’s photographs can best be described as being "based upon" the ZX-14 motorcycles, useful articles not subject to copyright protection. The fact that Hathaway’s artwork appears in the photographs is merely incidental. However, we need not resolve the derivative work question if the photographs were made with Hathaway’s authorization.

Based on this, I’d hesitate to say that you can’t reproduce the likeness of a person on copyright grounds. Personality rights, sure, but a photograph or accurate reproduction of a person shouldn’t be prohibited just because you got a tattoo in the mix. See also "The Background", a 1912 story by Saki about a man’s troubled life as a living work of art.

Add Your Comment

Your email address will not be published. Required fields are marked *

Have a Techdirt Account? Sign in now. Want one? Register here

Comment Options:

Make this the or (get credits or sign in to see balance) what's this?

What's this?

Techdirt community members with Techdirt Credits can spotlight a comment as either the "First Word" or "Last Word" on a particular comment thread. Credits can be purchased at the Techdirt Insider Shop »

Follow Techdirt

Techdirt Daily Newsletter

Techdirt Deals
Techdirt Insider Discord
The latest chatter on the Techdirt Insider Discord channel...