In Solid Oak, the court found that the sports figures featured in the video game NBA 2k had an implied license to use the tattoos on their bodies as elements of their likenesses and the video game publisher’s right to use the tattoos in depicting the players derived from this implied license. Take Two had good reason to believe in its implied license defense. WWE and Take Two then released wrestling video games “WWE 2K16”, “WWE 2K17”, and “WWE 2K18”, all of which featured Orton depicted with his tattoos. Alexander testified that she declined the offer and advised WWE that she did not grant it any permission to copy, duplicate, or otherwise reproduce any of her designs. She further testified that WWE then offered her $450 for extensive rights to use and produce the tattoo designs on WWE products.
She testified that a WWE representative laughed at her and stated she had no grounds and that they could do what they wanted with Orton’s images because he was their wrestler. Those arguments were that (1) Take-Two’s use of the tattoos was authorized by an implied license, (2) the fair use doctrine insulates their utilization of the tattoos and (3) the tattoos constitute a de minimis part of the video game.Īt trial, Alexander testified in 2009, that she contacted WWE’s legal department to negotiate a license for a possible faux tattoo sleeve product depicting her tattoo works. On a motion for summary judgment, Take Two made the same arguments that garnered it a win in Solid Oak Sketches v 2k Games. District Court for the Southern District of Illinois for depicting tattoos that are actually on World Wrestling Entertainment wrestler Randy Orton in the video game WWE 2K.
Tattoo artist Catherine Alexander sued Take-Two and 2K Games in the U.S. In this author’s personal opinion, the District Court got it all wrong.
IT TAKES TWO SUED SOFTWARE
Take-Two Interactive Software found that the depiction of tattoos on wrestler Randy Orton in a video game published by Take Two Interactive infringed the tattoo artist’s copyright in the tattoos. A jury in the District Court for the Southern District of Illinois in the case of Alexander v.
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