Paltry Damages Awarded In Take-Two’s Copyright Loss Over Randy Orton’s Tattoos Wiped Out On Appeal
from the not-worth-it dept
Going all the way back to 2020, we have been discussing one of a series of copyright disputes centered on video games and their faithful depictions of real-life tattoos within them. While the first of these were related to depictions of NBA players in Take-Two’s NBA2K series, which the company generally successfully defended, one outlier was for Take-Two’s WWE 2K series, in which it faithfully reproduced the tattoos on Randy Orton, a wrestler. That case went to trial, in which the jury ultimately found for the tattoo artist, Catherine Alexander. However, the trial that took roughly 2 years and who knows how much in legal fees to conduct ultimately resulted in the jury awarding Alexander damages in the amount of $3,750. How in the world could that possibly be worth all this trouble?
Trouble that extends far beyond a four-figure damage sum, too. After all, the real damage in all of this is the precedent it sets. The idea that someone receiving a tattoo, creative endeavor though it may be, might suddenly lose some rights over the depiction of their own image and likeness is absurd. Absurd and, frankly, very problematic when it comes to what is essentially a play at ownership over a portion of a person’s body.
So, when Take-Two petitioned the court for motion for judgment as a matter of law, arguing both that the jury erred in considering its fair use defense and that the jury’s damage award, paltry though it might be, was based on undue speculation, I had hoped that the precedent might be reversed.
It was not. The court has instead found, in large part due to the limits on what it was allowed to consider, that the jury was reasonable in its finding that Take-Two had indeed infringed upon Alexander’s copyright rights. On the other hand, the court also found that Alexander and her witnesses presented no evidence of actual or potential monetary injury, and so the damages in the case have been nullified to zero.
“Alexander presented no evidence at trial that would support the jury’s damages award. There was no evidence of either a hypothetical lost license fee or the value of the infringing use to the infringer. Alexander’s expert, Dr. Jose Zagal testified that he believed a portion of the sales and profits of the video games were attributable to the five tattoos because Defendants needed Orton as a character in his game and he needed to have his tattoos. However, Dr. Zagal did not conduct an analysis of how much the video games’ sales or profits were attributable to the tattoos. Ryan Clark, Alexander’s expert, also offered no opinion regarding damages. Further, Alexander testified that she has never licensed a tattoo for use in any medium, and that she could not identify any business or clients that she lost due to Orton’s tattoos.”
As Eric Goldman rightly notes, this is no cause of celebration. While it’s a bit funny that it took four years worth of a legal battle to get all the way to a judgment that both finds that Take-Two infringed on Alexander’s copyrights but awards her precisely zero in damages, this judgment also further solidifies the notion that depicting a famous person who has tattoos is somehow infringement.
All of the questions around a tattooed person’s personal autonomy remain as a result.
Filed Under: catherine alexander, copyright, damages, randy orton, tattoos
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Comments on “Paltry Damages Awarded In Take-Two’s Copyright Loss Over Randy Orton’s Tattoos Wiped Out On Appeal”
If a tattoo artist has rights to their tattoo design on someone else’s skin, then the customer getting the tattoo design should get paid for hosting someone else’s art.
But for the purposes of copyright law, all tattoos should necessarily be considered works for hire in which the tattoo artist at minimum must be granting a perpetual license for the display of their work without further compensation. If you want more money from the design, charge the customer more. Third parties aren’t a party to your contracts.
Copyright law already allows someone to own the copyright on a picture they take of a person, so allowing a tattoo artist to claim a portion of that person’s appearance seems odd. It would make normal acts like taking pictures of people into unintentional copyright violations.
It might be okay to say that the tattoo design is copyrighted such that someone can’t claim copyright on that portion of the photograph or the video game depiction of that person, the same way that if you took a picture of a person standing in front of the Mona Lisa, you only own the copyright on the portions of the picture that aren’t in the public domain, i.e. the painting itself.
Copyright… its only for us, not THOSE people.
A fun little fact: Pro wrestler CM Punk has a tattoo of the Pepsi tri-color logo on one of his shoulders and a tattoo of the COBRA logo from G.I. Joe on the other. In every videogame he’s ever been in, those tattoos have always been altered in some way to keep the appropriate trademark holders from firing off a legal salvo. Just noting something amusing in re: this whole deal about tattoos on real people in videogames.
Tattoos: Calling dibs on someone else's skin
There was no evidence of either a hypothetical lost license fee or the value of the infringing use to the infringer.
Oh I wouldn’t say that, by even bringing the case I can only guess at how many people who learned about it then decided that nah, they’d rather not pay for the privilege of someone else having ownership over any depictions of their body and whether or not they have the right to let someone else depict them.
The problem with the whole case was the parties that the artist sued. Rather than sue the game-maker, the real claim is against the NBA and the player. They never obtained the right to license the images of the tattoos. Take-two relied on the NBA to have the rights to license the images out in the first place.
Also, if a tattoo artist is going to tattoo a famous person, or someone s/he thinks is going to be famous, the artist needs to make sure they list which rights they are preserving within the original agreement to get the tattoo. Also, maybe they want to put in a licensing fee agreement as well for future 3rd party licensing.
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There is a notable difference between the two that makes this one more necessary, since Create-A-Wrestler mode is more in-depth in pro wrestling games than Create Player is in NBA games. IF there was any reason to believe that the WWE games allowed you to put Orton’s tattoos on your created wrestler (they don’t, WWE games’ CAW mode only has a few stock photos that they use for tattoos and none of the actual wrestlers’ ink), then there might have been a case.
Surely the greater damage to the tattoo artist’s livelihood will be everyone’s new knowledge that if you go to her for a tattoo, she will take your business partners to court.
Yeah, I’d be lying if I said I wasn’t experiencing any schadenfreude over small artists and creators fucking themselves over an own goal like this. The last thing pro-copyright people want is for any trial or decision to go to proving damages, because they’ve been relying on nothing more than hand-wringing and good faith claims to hit paydirt. We’re no longer in the era of Jammie Thomas-Rasset; judges and juries are no longer keen enough to give copyright plaintiffs the benefit of the doubt.
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That’s the point of copyright laws. To not have your work be infringed upon. If someone does, you have the right to take them to court. The system is working as intended.
Were judges and juries giving Capitol Records, Inc. et al. the benefit of the doubt, though, or were they actually just giving them extra rights that do not exist in law?
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Unfortunately statutory damages that have next to no burden of proof are a thing in law, and it’s unlikely that those will ever be removed from the books.
The benefit of the doubt Capitol Records et al had was that judges and juries had no reason to think they were exaggerating, embellishing or just flat out lying about their losses, but they’ve grown tired of claims that the industry is “dying” to piracy while the same copyright holders boast increasing profits year on year.
So the more copyright holders and organizations try to push for damages, they might find judges starting to ask for more proof – or, like in some of the later Malibu Media cases, slash the fines to the point where Malibu thought it was better to cut the losses and run before the fines set any unfavorable precedents.
“The idea that someone receiving a tattoo, creative endeavor though it may be, might suddenly lose some rights over the depiction of their own image and likeness is absurd. Absurd and, frankly, very problematic when it comes to what is essentially a play at ownership over a portion of a person’s body.”
So it’s ok for copyright to extend to one form of art but not this one?
You can’t reproduce copyrighted material you pay for like an art print, a photograph, a video game or movie you buy, but reproducing someone’s copyrighted art on someone’s body just because it happens to be attached to them is ok? Someone getting a perpetual license to display someone’s art on their body means the artist doesn’t get the same copyright protection as our corporate overlords?
It’s one thing if that art is simply being present in real life as the natural process of living or say broadcasting a game on TV. But taking that person and then recreating them digitally for your own profit and paying that person for their likeness for their profit is a different story IMO. There’s a distinction between tattoos that are just generic commonly used symbols or fair use transformations of existing works and wholy original creations.
I am sure I will be disagreed with, but reality seems this way to me when courts award things like piracy a single song with hundreds of thousands of dollars in damages per abuse.
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If I write an article for a newspaper or magazine, that is considered a work for hire and the publisher gets the rights to decide what happens with the material I created. Similarly, if I create a tattoo for a client, that is a work for hire on behalf of that client, and they have the right to decide whether or not the tattoo gets depicted in other media. The courts that found in favor of the tattoo artist decided incorrectly.
Tattoos are work-for-hire unless you made some other contract. Get rekt.