In 2018, tattoo artist Catherine Alexander filed a lawsuit against WWE and Take-Two Interactive, and their multiple partners over Randy Orton’s tattoo usage in WWE’s 2K video games. She believed that as she designed and inked them, she should be paid, yet when she went to WWE to request compensation, they offered her just $450. Subsequently, the frequently delayed trial was held in September, with Orton testifying as a witness. Nevertheless, a jury still rejected the fair use defense and found in favor of Alexander. However, she was only awarded $3750 in damages, which is likely much less than she’d hoped for.
Some people were surprised by Alexander’s victory because Take-Two Interactive Software had earlier triumphed in a case based on the tattoos that NBA stars LeBron James, Eric Bledsoe, and Kenyon Martin had. In that instance, it was concluded that the tattoos weren’t close enough to the players’ genuine tattoo designs since they were far smaller than they were in real life and were hard to distinguish due to the players’ motions during the games. And now, according to PWInsider.com, the defendants have asked for the jury trial to be dismissed and a new trial to be convened.
The defendants, who lost in a jury trial this past September, filed a motion with The United States District Court for the Southern District of Illinois, East St. Louis Division on 10/31, seeking the jury trial to be thrown out and a new trial be ordered. In the Motion, WWE, etc. are arguing for a judgment as a matter of law and if that fails, they are arguing for a new trial on “on the issues of fair use, waiver, estoppel, and license under Federal Rule 59.”
The argument in the motion is that the “ultimate question of fair use” in regard to the WWE video game series using the tattoos Alexander inked on Randy Orton in his video game character is “for the Court to decide, not the jury”, stating, “Based on the admitted and undisputed facts and consistent with both Supreme Court and Seventh Circuit law, this is precisely a scenario in which fair use applies.” The defendant argue that evidence shows consumers “would not, and did not” buy the WWE 2K videogames instead of Orton’s tattoos and that their “purpose in including” the tattoos are different from Alexander’s “purpose in creating them.”
PWinsider.comGiven the amount of money that Alexander was awarded, it may seem more straightforward to pay her and move on. Although the mere fact that she won has now established a precedent that could lead to legal action being taken by every tattoo artist who has ever had their work featured in a game. Therefore the costs could quickly mount up and become an ongoing expense when you consider how many video games feature real-life tattoos nowadays.
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