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JUDGE OFFICIALLY REMOVES ONE POTENTIAL DEFENSE IN RANDY ORTON TATTOOS-VIDEO GAME LAWSUIT

By Mike Johnson on 2022-09-23 10:05:00

Judge Staci M. Yandle, who is presiding over the trial in the lawsuit tattoo artist Catherine Alexander has brought against World Wrestling Entertainment, Take-Two Interactive Software, 2K Games, Inc., 2K Sports, Inc., Visual Concepts Entertainment, Yuke’s Co., Ltd. and Yuke’s LA Inc. before The U.S. District Court Southern District of Illinois, issued a Memoradum and Order yesterday, officially striking down one of the defendants' possible arguments.

The defendants had intended to argue, in part, that the usage of the tattoos were "de minimis" or too minor to be considered as a matter of law.  Judge Yandle has taken that off the table.

The complete memorandum and order reads:

Plaintiff Catherine Alexander filed the instant lawsuit against Defendants Take-Two Interactive Software, Inc., 2K Games, Inc., 2K Sports Inc., Visual Concepts Entertainment (the “Take-Two Defendants”), and World Wrestling Entertainment, Inc. (“WWE”) asserting copyright infringement under 17 U.S.C. § 501. On September 26, 2020, this Court granted Plaintiff’s motion for partial summary judgment and denied Defendants’ motion for summary judgment (Doc. 228).
This matter is now before the Court sua sponte to clarify the Court’s Summary Judgment Order(“Order”).

Alexander moved for partial summary judgment on the issue of copying. In granting Plaintiff’s motion for summary judgment, the Court found that it was undisputed that Alexander holds valid copyrights for the five tattoos at issue and that Defendants copied her copyrighted works. Therefore, the Order is amended to clarify this Court’s finding that, as a matter of law, Alexander owns a valid copyright to the five tattoos at issue in this lawsuit. Given that Defendants copied Alexander’s copyrighted tattoos, they are liable for copyright infringement unless they can establish an affirmative defense to their usage. Defendants asserted three affirmative defenses to their utilization of the tattoos in their motion for summary judgment: the existence of an implied license, the fair use doctrine, and use of the tattoos was de minimis.

In denying Defendants’ motion regarding the de minimis defense, the Court noted its doubt that the defense was viable under Seventh Circuit precedent and that the defense had been successfully invoked in other circuits 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. Therefore, the Court amends and clarifies its Order to reflect that, as a matter of law, the de minimis defense is not viable in this case and Defendants cannot assert the defense at trial.

The trial commences next week.  Orton has been called as a witness.

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