A St. Louis jury just ordered a video game company to pay off a tattoo artist whose designs it copied, setting a major legal precedent

In a landmark intellectual property case with far-reaching creative ramifications, World Wrestling Entertainment Inc and Take-Two Interactive Software Inc were ordered to pay former tattoo artist Catherine Alexander $3,750 in damages by a United States District Court. Illinois. Alexander inked six tattoos on wrestler Randy Orton, the image of which was later realistically rendered as a video game avatar, which a jury found infringed his copyright.

In her lawsuit, originally filed in East St. Louis District Court in 2018, Alexander said the tattoos were original designs to which she had exclusive rights, and that she had never granted WWE or associated gaming companies permission to recreate the tattoos in any official capacity. . The decision sets a fascinating precedent – the public display of tattoos is now open to civil liability, throwing a legal wrench in a culture that is increasingly integrating with digital media.

The issue of fair use in the realm of the tattoo industry has long been obscure, but has been gaining momentum in the courts in recent years. Last June, Kat Von D was sued by photographer Jeffrey B. Sedlik over allegations of unauthorized diversion after she used her 1989 portrait of Miles Davis as a reference for a photorealistic tattoo. (The case is still ongoing).

In 2017, tattoo artist James Hayden sued developer 2K Games for depicting designs he inked on NBA players LeBron James, Tristan Thompson and Danny Green in their popular video game series. without Hayden’s permission. And last September, a federal judge in Ohio ruled that Hayden’s tattoo designs were, in fact, copyrighted; it would be up to a jury to decide whether or not their virtual recreation was protected under fair use.

As in Hayden’s case, Catherine Alexander had filed applications with the US Copyright Office several years before her trial. She said her tattoos are “easily recognized by [Randy Orton’s] fans and members of the public,” further noting that WWE had offered her a $450 fee for the drawings, which she declined. Alexander’s lawsuit stated that she “has granted no permission to WWE to copy, duplicate or otherwise reproduce” any of her designs. The judge handling the case, Staci Yandle, denied a motion for summary judgment brought by WWE and Take-Two in September 2020, and the lawsuit went to trial last month.

In their arguments before the jury, WWE and Take-Two’s defense relied primarily on evidence of fair use of their video games, a particularly sensitive topic since they were unable to argue that digital reproductions were a relatively trivial example of copying. In legal terms, such de minimis The argument was central to a similar lawsuit brought against Take-Two by Solid Oak Sketches, a tattoo licensing company, involving tattoos used in the same video game series.

In March 2020, a Manhattan district judge ruled in favor of the video game company, finding that Take-Two’s use of tattoos was not integral to the games as a whole. In Alexander’s case, however, Judge Yandle expressed doubts as to whether the de minimis the defense was permitted, initially calling the issue an “open question” and ultimately deeming its inclusion “unviable.”

While the court declined to award Alexander the profits from the games, this case, while not a huge monetary win, does open a Pandora’s box of legal issues for the tattoo community going forward. And the decision goes beyond the immediate world of video games – how will tattoos be handled in print, video and digital space?

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