from again? department
In 2016, we began a series of articles about a tattoo artist suing Take-Two Software for accurately depicting tattoos on the bodies of several NBA players. The whole thing was pretty crazy, with Solid Oak Sketches seeming to claim that because gamers had his tattoos on their bodies, those gamers no longer had full control and the ability to take advantage of their own video game likenesses. . Although the court in this case allowed this case to proceed to trial, the court also ruled in favor of Take-Two in summary judgment, ruling that fair use of course protected these depictions as art and speech with minimal copying as part of the game. What made the lawsuit particularly cringe-worthy were the implications of its argument. As I said at the time:
In other words, you could say that by branding the player with Solid Oak designs, the company seems to think it can control players’ ability to take advantage of their own likenesses. That this draws the mind to very uncomfortable historical parallels was apparently no problem for Solid Oak.
This case should have sent a clear message to tattoo artists nationwide that such depictions do not constitute copyright infringement. Instead, Take-Two again finds himself in a different court to hear what is essentially the exact same case, only this time replacing a WWE wrestler with NBA players. Catherine Alexander was Randy Orton’s tattoo artist and learned that Orton’s appearance in a WWE video game included depictions of these tattoos. Additionally, WWE sells headlines depicting Orton’s tattoos. This time, the court failed to have the lawsuit against Take-Two dismissed at the summary judgment stage.
On Saturday, a federal judge in Illinois issued his partial summary judgment determining that WWE and Take-Two Interactive Software, the publisher of the WWE 2K video game series, had indeed copied his work. Now the question for a jury is whether this constitutes copyright infringement. The judge denies the defendants’ motion for summary judgment ruling that certain issues are amenable to trial. These include whether Alexander implicitly allowed Orton to broadcast 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 fact that the game’s use of players’ tattoos was de minimis, thus causing no harm to the copyright-holding tattoo artist. In the Seventh Circuit, where this case is being conducted, the use of de minimis is not a factor by precedent.
U.S. District Court Judge Staci Yandle’s decision to set up the first copyright lawsuit to focus on the unauthorized reproduction of tattoos will likely surprise those who thought the problem was largely resolved.
“Whether the Seventh Circuit recognizes this defense against copyright infringement claims is an open question,” Yandle writes, adding that she doubts the defense is viable in general and in this particular situation. “The defense was successfully asserted to permit the copying of a small, usually insignificant portion of copyrighted works, not the wholesale copying of works in their entirety as occurred here.”
Which is strange, because this is not how the de minimis exemption is applied in the NBA2K Case. It’s not how much copyrighted work you use, it’s how much that use counts in the overall copyrighted work in which it appears. In the NBA2K In this case, for example, the court noted that while all of the players’ tattoos were reproduced, those images were barely considered in the overall work and were generally not the focus of the player.
But we are left with the same question: can a tattoo artist, even at the request of an athlete, essentially mark the player in such a way that he can no longer enjoy his own likeness? The judge in this case seems to think the issue is one for a jury to decide.
On the first factor of fair use, for example, the judge’s opinion states, “Alexander argues that she created the tattoos for the purpose of displaying them on Orton’s body and that the defendants used the tattoos.” tattoos for the same purpose; to display them on Orton’s body in the video games. Alexander also takes issue with defendants’ characterization of the size of the tattoos and argues that they are prominent and clearly visible in video games. These are important factual disputes.
But it’s crazy. That’s not how look-alike rights work. And that is not how fair use enables the faithful representation of reality in works of art, including video games. Hopefully Take-Two’s attorneys can drive this house with a jury.
Filed Under: catherine alexander, copyright, randy orton, tattoo, video games
Companies: take-two, wwe