On April 17, 2018, Catherine Alexander, a tattoo artist from Illinois, sued Take-Two Interactive Software, Inc., 2K Games, Inc., 2K Sports, Inc., World Wrestling Entertainment, Inc. (the “WWE”), Visual Concepts Entertainment, Yuke’s Co., Ltd., and Yuke’s LA Inc. for copyright infringement relating to the tattoos on Randy Orton.
Randy Orton is a 13-time world champion professional wrestler for the WWE whose arms are almost entirely covered by tattoos. Between 2003 and 2008, Alexander tattooed Mr. Orton’s arms. Alexander’s complaint alleges that various WWE-branded videogames, including WWE 2K16, WWE 2K17, and WWE 2K18, feature “meticulous reproduction[s]” of those tattoos. Per Alexander, the WWE offered her $450 for the rights to Orton’s tattoos, which she declined.
This is far from the first time that the gaming industry has been involved in a copyright dispute over in-game tattoos. One suit, still ongoing, involves various tattoo artists suing Take-Two Interactive over reproductions of the tattoos of professional basketball players such as Kobe Bryant and LeBron James. Similarly, an Arizona tattoo artist once sued THQ over a tattoo in UFC Undisputed, though it appears that case was settled. In the movie industry, a similar dispute arose over the depiction of Mike Tyson’s tattoo in the movie Hangover II, though the dispute was quickly settled.
One strategy, explored by companies like Electronic Arts, has been to require that athletes acquire the rights to their tattoos if they want them properly represented in-game. Another option would be for athletes’ contracts to require that they acquire all rights to any tattoos they receive, such that the athletes may grant licenses to use the tattoos if necessary.
In any event, the outcome of these cases are likely to hinge on, among other arguments, whether tattooed individuals like Randy Orton have an implied license to their tattoos, and whether depiction of an individual’s tattoos is fair use. Another potential issue is whether a tattoo is sufficiently “fixed” to warrant copyright protection in the first place (there is precedent that a living garden is not “fixed” and one might make the same argument about artwork on living skin). We will monitor the cases and keep our readers informed of any updates.