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WWE, Yukes, 2K and the other defendants are not happy with the judgment against them in the lawsuit filed against them by Randy Orton's tattoo artist Catherine Alexander.
The defendants, who lost in a jury trial this past September, filed a motion with The United States District Court for the Southern District of Illinois, East St. Louis Division on 10/31, seeking the jury trial to be thrown out and a new trial be ordered. In the Motion, WWE, etc. are arguing for a judgment as a matter of law and if that fails, they are arguing for a new trial on "on the issues of fair use, waiver, estoppel, and license under Federal Rule 59."
The argument in the motion is that the "ultimate question of fair use" in regard to the WWE video game series using the tattoos Alexander inked on Randy Orton in his video game character is "for the Court to decide, not the jury", stating, "Based on the admitted and undisputed facts and consistent with both Supreme Court and Seventh Circuit law, this is precisely a scenario in which fair use applies."
The defendant argue that evidence shows consumers "would not, and did not" buy the WWE 2K videogames instead of Orton's tattoos and that their "purpose in including" the tattoos are different from Alexander's "purpose in creating them."
The Motion also argued, "tattoos are bound up with the rights of the individuals on whom they are inked, and unlike paintings or other artwork, are permanent parts of a person’s body. This makes them far from the core of what copyright law is designed to protect. Further, these particular Tattoos were copied from pre-existing sources and used common tropes, making them not creative, and were inked on a famous wrestler on whom they are regularly observed in public."
It was also argued, "Defendants used only as much of the Tattoos as necessary to further their transformative purpose."
They also argued, "Defendants’ use did not harm the market for the Tattoos, because, as Plaintiff’s testimony showed, there is no market for licensing the Tattoos in video games. In fact, there is a public benefit from allowing tattooed people to show freely and allow others to show their bodies. All four factors thus favor a finding of fair use, and Defendants are entitled to judgment on this issue as a matter of law."
WWE and the other defendants also argued that Alexander:
"...closed her case-in-chief without presenting legally sufficient evidence to prove actual damages or disgorgement of profits, on which she bore the burden of proof. With regard to actual damages, Plaintiff failed to articulate any measure of actual damages that was not based on undue speculation.
Plaintiff specifically did not offer any evidence of a decrease in value of the copyrighted works, the profits she would have made without the infringement, or what a willing buyer would have paid to obtain a license from Plaintiff for Defendants’ use in WWE 2K. In fact, Plaintiff admitted she could not identify any business or clients that she lost due to Mr. Orton’s tattoos. As a result, Plaintiff’s counsel invited the jury in his closing to speculate about what actual damages Plaintiff might have suffered. That is not evidence, and no reasonable jury could have awarded any actual damages in this case, because there was no evidence for it to do so. With regard to disgorgement, as the jury recognized, Plaintiff failed to present any evidence of a causal nexus between the alleged infringement and her claim form Defendants’ profits.
There is no evidence in the record that anyone bought WWE 2K for the Tattoos, and in fact, all of the evidence in the record indicates the opposite. Although the jury’s verdict shows that it recognized no such causal nexus existed, the lack of any proof whatsoever further warrants judgment as a matter of law in favor of Defendants. Moreover, although Defendants do not believe Plaintiff is entitled to a new trial, if Plaintiff requests one and the Court grants it, Defendants respectfully request that the new trial include all of Defendants’ defenses, including (1) fair use; (2) waiver; (3) estoppel; and (4) license. Not only is the fair use verdict against the weight of the evidence, but to the extent Plaintiff is permitted to retry her damages case, Defendants should be able to submit additional evidence on these defenses."
As covered by PWInsider.com, Alexander won a jury trial in September over the usage of her work in the WWE 2K video game series without her authorization. The jury had three points they needed to come to an agreement on. They were asked if the defendants (WWE, etc.) had proven the tattoos were fair use, and therefore were free and clear to be used. The jury ruled no, agreeing that the plaintiff, tattoo artist Catherine Alexander, was right to go for damages. They were then asked to determine the damages that Alexander was entitled to for the usage of the tattoo designs. The jury ruled that Alexander was entitled to just $3,750, obviously far less than Alexander was gunning for with the lawsuit given the amount of time and effort the case took. The jury was also asked to determine what amount of the profits for the video games, etc. were derived from the usage of Alexander's tattoo designs. The jury ruled that amount was zero. It took the jury all of three hours and 26 minutes to come to their decision. While Alexander was victorious in the lawsuit, she did not exit with a massive monetary judgment. WWE is seeking to strike that from the record and start over.
As PWInsider.com has covered over the last several years, the lawsuit, initially filed in April 2018, alleged 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 sued 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."
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 had several defenses they could argue before the jury. As it turned out, the jury didn't agree with any of the defenses, siding with Alexander.
There have been 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 when it comes to their work being used in third-party licensing, action figures, games, etc. It may be that precedent is what everyone involved here is trying to wipe clean to prevent future instances of legal issues from other athletes and similar public figures' tattoos in future licensing, video games and beyond.
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