Take-Two to stand trial over another tattoo artist claiming copyright to athletes’ bodies

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of again? department

In 2016, we started a series of posts about a tattoo artist suing Take-Two Software for the accurate portrayal of tattoos on the bodies of several NBA players. It was all pretty crazy, with Solid Oak Sketches seemingly claiming that because gamers got their tattoos on their bodies, these gamers no longer had full control and the ability to take advantage of their own likeness in video games. . While the court in that case allowed the trial, the court also ruled in favor of Take-Two in summary judgment, ruling that fair dealing of course protected these performances as art and speech with minimal copying. as part of the game. What made the lawsuit particularly newsworthy were the implications of his 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 capitalize on their own likeness. That this draws the mind to some very uncomfortable historical parallels was apparently not a problem for Solid Oak.

This case should have sent a clear message to tattoo artists across the country that such representations did not constitute copyright infringement. Instead, Take-Two again ends up in another court hearing which is essentially the exact same case, but this time substitute a WWE wrestler for 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 initiate proceedings against Take-Two during the summary judgment phase.

On Saturday, an Illinois federal judge issued his partial summary judgment ruling that WWE and Take-Two Interactive Software, the publisher of the WWE 2K video game series, had copied his work. Now the question for a jury is whether this falls under copyright infringement. The judge dismisses the defendants’ motion for summary judgment, ruling that certain issues are likely to be tried. 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 In that case, the court ruled that the in-game use of player tattoos was de minimis, thus not causing prejudice to the tattoo artist who owned the copyright. In the Seventh Circuit, where this matter is conducted, the use of de minimis is not a factor by precedent.

The decision of United States District Court Judge Staci Yandle to hold the first copyright lawsuit ever devoted to the unauthorized reproduction of tattoos will likely surprise those who thought the problem was in the making. 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 has been used successfully to allow the copying of a small and generally insignificant part of the copyrighted works, and not the bulk copying of the works in their entirety as has occurred here.”

Which is strange, because this is not how the de minimis exemption is applied in the NBA2K Case. It’s not the amount of copyrighted work you use, it’s the amount of use that goes into the overall copyrighted work in which it appears. In the NBA2K In that case, for example, the court noted that although all of the player’s tattoos were reproduced, these images were barely factored into the overall work and were generally not the main focus. of the player.

But we end up with the same question: Can a tattoo artist, even at the request of an athlete, essentially brand the player in such a way that he can no longer enjoy his own likeness? The judge in the present case seems to think that this question falls to the jury.

Regarding the first fair use factor, for example, the judge’s opinion states: “Alexander contends 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 video games. Alexander also takes issue with the defendants’ characterization of the size of the tattoos and maintains that they are conspicuous and clearly visible in video games. These are important factual disputes. “

But it’s crazy. This is not how look-alike rights work. And this is not how fair use allows for the faithful representation of reality in works of art, video games included. Hopefully Take-Two’s lawyers can lead this house with a jury.

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Filed Under: catherine alexander, copyright, randy orton, tattoo, video games
Companies: take two, wwe


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