Randy Orton’s tattoos have sparked legal issues in the case of Alexander v. Take-Two Interactive Software, even though the wrestler himself is not a party to the suit. On Wednesday, U.S. District Judge Staci Yandle denied a motion from WWE 2K’s publisher to overturn a 2022 jury verdict that found Take-Two and others infringed on the copyright of tattoo artist Catherine Alexander. However, she granted Take-Two’s request to set aside the jury’s damages award of $3,750 due to a lack of proof of financial harm.
The case centers on Orton hiring Alexander to create six tattoos, including tribal marks and a Bible verse, between 2002 and 2008. Alexander obtained copyrights for five of these tattoos. WWE compensated Orton for using his name, image, and likeness, while Take-Two paid WWE to feature Orton’s character in their wrestling video games.
The key legal question is whether Alexander’s copyright claims hold when the tattoos became part of Orton’s body and appearance. Take-Two argues that Alexander implicitly licensed Orton to display the tattoos since he paid her for them. They also invoked the fair use defense, which allows limited copying under specific conditions, claiming their use was transformative for creating a realistic video game avatar.
In 2022, the jury found against Take-Two, concluding that the use of the tattoos constituted copyright infringement. Judge Yandle affirmed this verdict, stating that the game’s use of the tattoos was “clearly commercial” and not merely for news or educational purposes. She emphasized that the tattoos were included for their expressive value, allowing players to apply them to custom wrestlers, not just to recreate Orton.
Yandle supported Alexander’s claims about her creative efforts in designing the tattoos, reinforcing her copyright protection. However, she did not accept Take-Two’s argument that precise tattoo replication was necessary for accurate representation, noting that the game featured a creation tool that allowed for modifications.
On the damages issue, Yandle sided with Take-Two, stating that Alexander failed to demonstrate the tattoos’ value. Jurors were left to speculate on damages, as Alexander did not provide evidence linking the infringement to financial harm. One of her expert witnesses suggested a connection between game sales and the tattoos but lacked empirical support. Alexander also admitted she hadn’t licensed her tattoos for other media and could not identify lost business from Orton’s tattoos.
Both parties may appeal Yandle’s ruling to the U.S. Court of Appeals for the Seventh Circuit. Alexander may have won on fair use but failed to secure damages, while Take-Two’s unsuccessful fair use defense raises concerns for future cases. Other tattoo artists could potentially succeed in similar lawsuits if they can prove damages, especially if they register their copyrights before litigation. This could allow them to pursue statutory damages, which could be significantly higher than actual damages.
You Might Be Interested In
Tattoos That Go Beyond the Surface