Take-Two Loses In Copyright Case Involving Faithfully Depicting Randy Orton’s Tattoos

from the branded dept

Why won’t this tattoo copyright thing die? We’ve talked about several instances over the past few years involving someone famous having their likeness faithfully reproduced, in an authorized fashion, in video game media. Take-Two has been involved in more than one of these disputes, which tend to amount to a tattoo artist or company claiming copyright on a tattoo design and arguing that their reproduction in video games constitutes copyright infringement. In the past, courts have managed to rule at the summary judgement phase that these claims are nonsense, that the depictions constitute fair use for a variety of reasons mostly dealing with the de minimis nature of the depictions in the overall game, and have found for Take-Two.

But then there’s the Randy Orton case involving Take-Two’s WWE 2K series. In that case, the court let the case go before a jury, arguing that the de minimis argument wasn’t valid because the entire tattoo was depicted. But that isn’t the de mimimis argument that was actually made. Instead, the argument is that the tattoo represents such a tiny percentage of the total creative work that it falls under fair use.

That aside, what remains is the uncomfortable question or scenario that I keep copying and pasting into each of these posts:

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.

Yeah, well, the jury in the Randy Orton case seems to think that this all just fine. The jury found for tattoo artist Catherine Alexander in the case, stating that Take-Two did indeed infringe on her copyrights for Orton’s tattoos. The award, however, likely left Alexander wondering whether any of this was worth it.

On Friday, a jury in federal court in southern Illinois awarded artist Catherine Alexander $3,750 after ruling in her favor in her lawsuit against Take-Two Interactive Software, 2K Games and World Wrestling Entertainment. The sum may seem small, but according to numerous art industry publications, the case sets a “fascinating precedent.”

So, two things here. First, this trial started in 2018 and I can’t possibly believe that $3,750 is worth whatever time and money Alexander spent on all of this. If that is where we could leave this entire discussion, it would be a mildly irritating result and that’s it. Unfortunately, there’s that last bit about the precedent this sets.

And that sure feels like a massive freaking problem, because the precedent being set is that a person can contract an artist to put a tattoo on their body and that suddenly reduces that person’s autonomy over how their own body can be depicted in other media. Or, more concisely, getting a tattoo now means losing some control over licensing your own image and likeness.

And whatever else we might want to say about the topic, that is not what the framers had in mind when copyright law was constructed.

According to Video Games Chronicle, “Although the final amount may be considered relatively small, it does set a potential precedent for other tattoo artists to make similar claims if their designs are replicated on athletes in video games.”

Uh, yeah. I would think we’re now going to see an explosion in the number of tattoo-related copyright infringement cases going to court and every single one of them is going to point directly to this ruling as a reason to escape summary judgement.

And if I’m an athlete or celebrity, you better believe I’m thinking long and hard about whether getting a tattoo without all kinds of legal release forms is worth it. This ruling has made being famous less lucrative, since media and gaming companies are going to be less interested in faithfully depicting these individuals. And perhaps it’s also made the tattoo industry less lucrative if the famous suddenly have to worry about this sort of thing when deciding to get a tattoo.

All for a couple thousand dollars? Cool.

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Comments on “Take-Two Loses In Copyright Case Involving Faithfully Depicting Randy Orton’s Tattoos”

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19 Comments
This comment has been deemed insightful by the community.
Anonymous Coward says:

As an artist, I find this case utterly ridiculous, any unique work I am commissioned to create belongs to the person I sold it to, and is theirs to do with as they please. They brought me a concept, they directed my work, they paid for all my time and materials, and they can make use of it. It’s the definition of work for hire. Work I create for myself in my own time I’d theoretically hold a copyright on (If I believed in copyright and had any interest in enforcing such).

That One Guy (profile) says:

Well that's one way to tank your industry...

Nothing like arguing in court that placing a tattoo on someone means you own that person’s image so long as it includes that part and they need your permission for someone to make use of it.

I can’t help but suspect that they just shot their foot with an artillery strike, as any athlete or famous person paying attention to the case is going to be looking really hard at current and future tattoos, since they just went from a bit of art that you carry with you to a serious liability effectively giving someone else veto rights over any depictions of the bearer.

Anonymous Coward says:

Wait does this mean that if the Judge does NOT have a tattoo, then he has infringe on the totally real tattoo I just thought up called “blank slate” (take a guess what it looks like)?

What if you kidnap someone, and tattoo them? Can you now control what public appearances they make?

Also why is the bare for “sane judge” apparently so high?

Tanner Andrews (profile) says:

Appears to be a Trial Cour Decision

Article says that the jury found infringement. The amount of damages is minimal for a three-year casem, but the fees and costs ought to be extraordinary. Well, I say that, but I may be wrong because the tatoo vendor may not have registered the celebrity with his ink.

Even if they were not, the implications in so many other situations and for so many other famous celebrities, and for tatoo vendors, seem large.

I would not be surprised if the result were appealed. It is challenging to appeal a jury finding of fact, because the standard of review is whethere there is competent substantial evidence to support the verdict. However, there is the possibility that it can be cast as a legal issue where the standard of review is more readily achieved.

There are some interesting issues. A previous comment mentioned the work for hire issue. If registration was accomplished, the it violated the celebrity’s right to publicity? Another prior comment mentioned right of public performance, which brings us closer to the real issue: whether putting a tatoo on someone ought to entitle you to a cut of everything in which they appear going forward.

We will leave for another day the question of whether there would be any problems with restraining the people in charge of the new site long enough to give them text tatoos saying ``javascript is evil”, `\I plan to fix preview”, and ``next time I will look at what I replaced to see how it actually worked”.

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