Jury Trial over the issue of Copyright Infringement in WWE Games

The practice of Inking goes back to at least Neolithic times. Started off about 6000 years ago, this ancient practice is still very much prevalent in mainstream modern society. The survey suggests more than 25% of the world's population is inked. While some tattoos are plain and simple, many are complex. Evidently, owing to their permanent nature humans use them as a form of self-expression. But well, who owns the copyright of tattoos? Since it’s clear that tattoos are precisely permanent and do not carry any display limitation as such. Over the years, questions regarding the copyright protection of tattoos are discussed across various jurisdictions. Once again, a similar issue is raised before the jury.

This time, WWE Hall of Fame Wrestler, Randy Orton’s tattoo artist Catherine Alexander knocked on the judicial doors to protect her copyright. Virtual reality seems to be touching skies and definitely, touching every aspect of a human being. In this race, video game developers like Take-Two attempt to attach even the tiniest details in their characters. One such was Randy Orton’s tattoo in “WWE2k” and “WWE2k Battleground” series, which evidently is not acceptable by Alexander. The allegations do not stop here. It is further claimed that WWE is selling out sleeves depicting Randy Orton’s exclusive tattoos.

For a fact, this is not the first copyright slap on Take-Two Interactive. Just months ago, in Solid Oak Sketches, LLC v. 2k Games, Inc & Ors (16-CV-724-LTS-SDA, 2020 WL1467394) another tattoo artist challenged the video game developers pertaining to a similar issue. The case went in favor of Take-Two after the Court observed that the tattoo depiction in question is de minimis and not substantially visible. In this regard, a stake in actionable copyright infringement could not be placed. That turned out to be a landmark judgment.

I believe the focal point of the present dispute makes it somewhat different from Solid Oak. Keeping in consideration whether Alexander licensed Randy Orton to display the said tattoos, the Federal Court of Illinois directed the parties to proceed towards a Jury Trial. In a 13-page ruling, Judge Staci Yandle mentioned, “Whether the Seventh Circuit recognizes this defense to copyright infringement claims is an open question.” Further adding, “The defense has been successfully invoked to allow copying of a small and usually insignificant portion of the copyrighted works, not the wholesale copying of works in their entirety as occurred here.”