WWE is headed to trial in the lawsuit filed over the use of Randy Orton’s tattoos in the WWE 2K game series. WWE has been sued by Catherine Alexander over their use of the tattoos she designed and created on Orton in the game series. Alexander says that she did not give WWE, Take-Two Interactive Software, 2K Games, 2K Sports, Visual Concepts Entertainment, Yuke’s Co., or Yuke’s LA permission to use the tattoos which include the tribal tattoos on Orton’s forearm, a Bible verse on his arm, a dove, a rose, and a skull.
THR reports that a federal judge in Illinois gave Alexander a partial summary judgment, ruling that WWE and Take-Two had indeed copied her work. The case is now being sent to a jury trial to determine whether the copying rises to the level of copyright infringement.
Take-Two previously beat a lawsuit filed against them regarding tattoos on NBA stars appearing in their NBA 2K franchise, though the site notes that was done in part because in the NBA case, the use of the copyrighted material was de minimis (too trivial or minor to merit consideration). Orton’s case is taking place in the one circuit in the US that has not explicitly recognized triviality as a viable defense.
At issue for the trial will be, among other things, whether Orton had an “implied license” to use the works. Orton said in a declaration that he understood the tattoos to be his personal expression, and that he was never advised he would need further permission to make them visible.
The judge wrote:
“It is unclear whether Alexander and Orton discussed permissible forms of copying and distributing the tattoo works or whether any implied license included sub licensing rights such that Orton could give permission for others to copy Alexander’s tattoo works. 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.”
WWE and Take-Two have also taken the position that the use of tattoos was a copyright fair use, which will be decided at trial.