Randy Orton has been getting his tattoos inked by Illinois tattoo artist Catherine Alexander since 2003. She is responsible for his tribal tattoo on his upper back and his full sleeves. In 2009 she asked WWE for financial compensation as WWE was using her artwork, and after being laughed at, was offered just $450 for the rights. She declined, and in 2018 filed a case against WWE and Take-Two Interactive Software, who are the parent company of 2K Games, for copyright infringement.
Now US District Court Judge Staci Yandle has reviewed the case and determined that Take-Two Interactive Software, the publisher of the WWE 2K video games, had indeed used her designs. Therefore it will now be up to a jury to determine if copyright infringement did take place. A big part of the issue will come down to whether Alexander gave Orton an implied license, including sub-licensing rights. Randy Orton himself has stated in a declaration that he believed the tattoos to be his personal expression and was not made aware he’d need additional permission. WWE and Take-Two are also using fair use as a defence.
Earlier this year, Take-Two Interactive Software won a similar case based on the tattoos designs used on NBA players LeBron James, Kenyon Martin, and Eric Bledsoe. In that case, the judge felt the tattoos weren’t similar enough to the actual tattoos on the players as they were between 4.4% and 10.96% of the size that they appear in real life, and the player’s movements during games make them difficult to discern. Plus, there was a reasonable inference of an implied license, and fair use.