A recent United States district court decision on copyright infringement has brought the issue of recreation of tattoos in video games back into the spotlight, and has cast doubt on an earlier ruling from another district court in a different judicial circuit.
The gravamen of the case was the digital depiction of five tattoos on professional wrestler and current WWE champion, Randy Orton, in the “WWE 2K” professional wresting video game series. The plaintiff, tattoo artist Catherine Alexander, filed the lawsuit against the defendants (collectively, “Take-Two”), who develop the WWE 2K video game series and sought to recreate Orton’s tattoos in a digital format. While Take-Two had obtained permission to use Orton’s likeness in the video game, Alexander claimed copyright infringement pursuant to 17 U.S.C., § 501 with respect to Orton’s tattoos, and argued that her consent to include Orton’s tattoos was required, but was not provided. Importantly, Alexander had earlier registered copyrights for each of the tattoos at issue.
Alexander filed a motion for partial summary judgment on the issue of copyrighting, and Take-Two filed its own cross-motion for summary judgment, arguing that Alexander’s copyright claim was insufficient as a matter of law, and requested that the Court dismiss the claim accordingly. Judge Staci Yandle in the US District Court for the Southern District of Illinois (Seventh Circuit) granted Alexander’s motion, but denied Take-Two’s motion.