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Several years after tattoo artist Catherine Alexander won a 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, that victory - at least financially - has been nullified.
As PWInsider.com covered over the last several years,Alexander's lawsuit, filed back in April 2018, alleged that all of her tattoo work on WWE star Randy Orton were her own original designs that she alone owned 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 the 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.
At the time, 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. 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.
So, while Alexander was victorious, she did not exit with a massive monetary judgment - and after yesterday's ruling, she will not receive any financial damages.
The defendants had filed for a summary judgment immediately, asking the court to rule that the jury's findings were not in line with the law at hand.
On 9/25, United States District Court Judge Yandle ruled on those motions. While noting that WWE and the other defendants had argued that including Orton's tattoos were done in order to present him as true to life as possible, the video games were a commercial enterprise and the inclusion of the same tattoos in the create a wrestler feature of the games undercut the argument, since the Alexander's tattoos could be used on characters who clearly were not Orton. So, the judgment against the defendants would stand.
However, the financial gains were nullified on 9/25. In the ruling, Judge Yandle ruled:
"Defendants contend that, even if their utilization of the copyrighted tattoos was not fair use, they are entitled to judgment as a matter of law on Alexander’s claims for damages because the jury award was based on undue speculation. “The Copyright Act permits a copyright owner to recover actual damages suffered as a result of the infringing activity and any profits of the infringer resulting from the infringement that are not otherwise taken into account in calculating actual damages.” Bell v. Taylor, 827 F.3d 699, 709 (7th Cir. 2016) (quoting McRoberts Software, Inc. v. Media 100, Inc., 329 F.3d 557, 566 (7th Cir. 2003)). Actual damages are “usually determined by the loss in the fair market value of the copyright, measured by the profits lost due to the infringement or by the value of the use of the copyrighted work to the infringer.” Id. A jury may consider either a hypothetical lost license fee or the value of the infringing use to the infringer to determine actual damages, provided the amount is not based on “undue speculation.” Id. At a minimum, the plaintiff must prove a causal connection or nexus between the infringement and defendant’s gross revenues.
Alexander presented no evidence at trial that would support the jury’s damages award. There was no evidence of either a hypothetical lost license fee or the value of the infringing use to the infringer. Alexander’s expert, Dr. Jose Zagal testified that he believed a portion of the sales and profits of the video games were attributable to the five tattoos because Defendants needed Orton as a character in his game and he needed to have his tattoos. However, Dr. Zagal did not conduct an analysis of how much the video games’ sales or profits were attributable to the tattoos. Ryan Clark, Alexander’s expert, also offered no opinion regarding damages. Further, Alexander testified that she has never licensed a tattoo for use in any medium, and that she could not identify any business or clients that she lost due to Orton’s tattoos.
Because Alexander failed to present evidence of the tattoos’ value, the jury had to engage in undue speculation in awarding damages. Accordingly, Defendants are entitled to judgment as a matter of law on Alexander’s damages award."
In plain English, that meant that the damages the jury ruled owed to Alexander were now vacated. Her victory stands, but she will receive nothing financially.
There is no word yet whether Alexander will appeal the decision.
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