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ORTON TATTOO TRIAL GOES TO THE JURY

By Mike Johnson on 2022-09-30 11:15:00

The defense rested yesterday in the lawsuit tattoo artist Catherine Alexander 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. 

The case is now in the hands of the jury, who will receive instructions today as to what they are ruling on and the parameters on how they will make their decision.

As PWInsider.com has covered over the last several years, the lawsuit, initially filed in April 2018, alleges that all of Alexander's tattoo work on WWE star Randy Orton are her own original designs that she alone owns the rights to.  Alexander is suing, claiming that the defendants have all infringed on her copyrights and that she has never given any of the defendants permission to recreate them in WWE-licensed videogames.

In her lawsuit, Anderson stated that she performed the tattoo work on Orton between 2003 and 2008 and that "are easily recognized by his fans and members of the public."  She also noted that, in advance of the lawsuit obviously, she "submitted applications to register copyrights on each of the aforementioned works on March 15, 2018." 

Anderson also alleged that she had previously contacted WWE regarding material featuring Orton's tattoos being sold by the company in 2009 and at that time, they offered her a $450 fee for the rights to the designs. Alexander   claimed she turned that offer down and at the time, "told WWE that Plaintiff did not grant any permission to WWE to copy, duplicate or otherwise use or reproduce any of Plaintiff’s designs."

Alexander also alleges in the lawsuit that "Mr. Orton does not have ownership in the copyrights asserted herein and has no authority to and did not grant permission for Defendants to commit the acts complained of in this Complaint."  Orton has not been named as a defendant in the lawsuit and has never commented publicly on the situation.

In a ruling issued back on 9/26/20, Judge Staci M. Yandle ruled that WWE and Take-Two had indeed copied five tattoos that were Alexander's original work that she holds valid trademarks on.  Judge Yandle did deny Alexander's request for a summary judgment (which would have been a knockout blow for her legally, setting up definite damages) citing that some of the tribal tattoos Orton has inked would not allow for a judgment, leaving it on for a jury to decide.  At the time, Judge Yandle noted that while there was no question that WWE copied Alexander's works, they have laid out three potential defenses that the jury can decide for themselves whether to agree with or not via the trial process.

There are several issues that a jury will decide, including whether Orton was automatically granted an implied license to have his tattoos recreated via WWE's licensed products, if they would be considered copyright infringement if Orton did not have that license, whether the tattoos would fall under "fair use" (brief excerpts of copyright material may, under certain circumstances, be quoted verbatim for purposes such as criticism, news reporting, teaching, and research, without the need for permission from or payment to the copyright holder), whether the tattoos are de minmis (too trivial or minor to merit consideration legally) and whether there would be damages due to Alexander. 

There are a lot of eyes on the case given that scores of video games that feature professional athletes recreate their tattoos in the games, and this case could set a legal precedent for other tattoo artists to follow.

The case had been pushed back numerous times before.  Originally, it was pushed back as the original presiding Judge retired from the bench, requiring Judge Yandle to take over the proceedings.  The trial was then pushed back again to June 2020 at the request of 2K and several other plaintiffs then again to February of this year and will was to finally take place this month until being delayed yet again to this month due to COVID-19.

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