Tattoo Artist Copyright Win Will Create Uncertainty Over Celebrities with Tattoos | Weintraub Tobin

A jury of the District Court for the Southern District of Illinois in the case of Alexander v. Take-Two Interactive Software found that the depiction of wrestler Randy Orton’s tattoos in a video game published by Take Two Interactive violated the copyright of the tattoo artist’s tattoos. In the personal opinion of the author, the district court got everything wrong.

Tattoo artist Catherine Alexander sued Take-Two and 2K Games in the US District Court for the Southern District of Illinois over the depiction of tattoos actually appearing on World Wrestling Entertainment wrestler Randy Orton in the WWE 2K video game. Upon a summary judgment motion, Take Two made the same arguments that earned him a win in Solid Oak Sketches v 2k Games. These arguments were that (1) Take-Two’s use of the tattoos was authorized by tacit license, (2) the fair use doctrine isolates their use of the tattoos, and (3) the tattoos represent a minor part of the video game.

In court in 2009, Alexander testified that she approached WWE’s Legal Department to negotiate a license for a possible fake tattoo sleeve product depicting her tattoo work. She testified that a WWE representative laughed at her and explained that she had no reasons and that they could do whatever they wanted with Orton’s pictures because he was their wrestler. She further testified that WWE subsequently offered her $450 for extensive rights to use and produce the tattoo designs on WWE products. Alexander testified that she turned down the offer and told WWE that she had not given her permission to copy, duplicate, or otherwise reproduce any of her designs. WWE and Take Two then released the wrestling video games WWE 2K16, WWE 2K17, and WWE 2K18, which featured Orton with his tattoos.

Take Two had good reason to believe in its tacit license defense. In Solid Oak, the court found that the sports characters featured in the NBA 2k video game had an implied license to use the tattoos on their bodies as elements of their likenesses and the right of the video game’s publisher to use the tattoos to represent the derivative players this implied license. A key element of the Solid Oak court’s finding of implied license was that the tattoo artist knew that their design was likely to appear in public, on television, in commercials, or in other media.

Alexander claimed that she has not given any of her clients permission to use copies of her tattoo work in video games, arguing that the WWE and Take Two exercised Orton’s rights to his own likeness and right to appear in media with an implied license to use merge their copyrights in perpetual and other commercial ways such as B. in video games. In ruling on Take Two’s motion for summary judgment, the court noted that it was not clear whether Alexander or Orton actually discussed whether and to what extent Orton had permission to copy and distribute the tattoos and whether an implied license would include sublicense rights. On that basis, the district court denied summary judgment on this affirmative defense.

The district court also found that the use was not fair use. The key to determining fair use is whether the new use is transformative; Does the new work merely “replace the objects” of the original creation, or instead add something new, with a broader purpose or character, altering the first with a new expression, meaning, or message. Take Two argued that using the copyrighted tattoos was transformative. Take Two argued that Alexander inked the tattoos at Orton’s request to reflect his personal expression, while Take Two depicted the tattoos in WWE 2K to realistically portray Orton. The district court found in this case a factual dispute over Take Two’s purpose in using the tattoo works. Alexander claimed she created the tattoos to display on Orton’s body and Take Two used the tattoos for the same purpose; to display them on Orton’s body in the video games. The court accepted Alexander’s argument.

Following the court’s decision on Take Two’s motion for summary judgment, the matter went to trial. Apparently, shortly before the hearing, the district court decided that the de minimis use defense was not applicable. Then it appears that the court refused to allow the jury to hear direction regarding the implied license defense, although neither party objected to the jury receiving that direction. Likewise, the court refused to allow the jury to hear instructions on the affirmative defense of the waiver.

However, the jury was given instructions on fair use. However, as the Supreme Court recently reminded us in Google LLC v. Oracle America Inc., fair use is a mixed matter of law and fact, and the jury is intended only to resolve contentious issues of fact underlying the defense that, according to The district court’s decision on Take Two’s motion for summary judgment was Take Two’s purpose for using the tattoos. After that, it was up to the court to determine the final applicability of fair use. So it appears that the jury did not receive direction on the affirmative defenses it should have decided, and essentially decided both the issues of fact and law governing the fair use of the affirmative defense.

While I’m sure Take Two will resonate, creative arts companies like video game publishers, photographers, and production companies are grappling with the consequences of this decision. Alexander’s attorney is quoted as saying that Alexander’s victory at the trial court “could open the floodgates of litigation,” and I think I agree.

What the district court also seemed to ignore was the practical effect of the verdict. Essentially, once someone gets a tattoo, that person no longer has full control over that body part. In principle, the tattoo artist has the right to block the image of the tattooed body part. If a celebrity has an arm tattoo and that celebrity has to be shirtless in a film, the producer would have to get a tattoo exemption, unless the producer covers the tattoo with makeup – which by that ruling he very well has to do Artist. And if the tattoo artist didn’t want to give the go-ahead and the producer can’t cover the tattoo for some reason, it could mean the actor could lose the job. Sounds a bit extreme, but it is a logical extension of the decision.

And what if this arm tattoo is fully visible on the celebrity’s social media pictures? Technically, this would be an offensive public display of the work. I understand the basics of a paparazzi suing a celebrity when that celebrity posts a picture taken by the paparazzi without permission, but consider the reality of a tattoo artist suing a celebrity when the celebrity takes a selfie showing the tattoo on their arm capturing fame.

Essentially. This decision means that individuals who have tattoos no longer have complete control and autonomy over their Persona. Since a person’s outward appearance is part of that person’s right of publicity, the tattoo artist does not reasonably understand that when a person gets a tattoo, that tattoo inexorably merges with the person’s image and that any right of a person in the exploitation of their likeness would be themselves extend to the tattoo. It’s almost impossible to imagine anything else.