Changing the Game: A Win for Tattoo Copyrights Could Usher in a Change in how Companies Approach Tattoos In Videogames￼October 20, 2022
Recently, in the first tattoo copyright infringement trial against a videogame company, a jury returned a verdict in favor of the tattoo artist. This marks a change in how copyright infringement in the videogame industry will be treated, as prior suits have failed to make it past the summary judgment stage and were in favor of the videogame companies.
Back in 2016, Solid Oak Sketches, a company that provided tattoos for NBA athletes, sued Take-Two Interactive for the use of their original designs in videogames that depicted their athlete clients with their tattoos digitally reprinted. The outcome of that case came down in March 2020 in favor of Take-Two Interactive. The judge found that athletes have a right to license their likenesses, including what they look like to various creative works. At the time this came down, it looked like future tattoo copyright cases would lose on similar grounds. So, the question is what has changed and what does this mean for the future of videogames that depict athletes realistically?
Catherine Alexander, a tattoo artist for pro wrestler Randy Orton, sued World Wrestling Entertainment and Take-Two Interactive in 2018 for copyright infringement. They create realistic depictions of the wrestlers through a process called “photo reference” where they digitize athletes through authentic photographs. Orton has appeared in three releases of WWE 2K videogames since 2015, and Alexander claimed they used six original tattoo designs she owns within those games. The judge granted Alexander partial summary judgment that five of her tattoo designs had valid copyrights, each of which the defendants infringed on. The court also dismissed the defendant’s de minimis use defense on summary judgment. The judge found that this theory only applies when a defendant copies an insignificant portion of the copyrighted work. This is a change from Solid Oak, where the judge there ruled that it was a de minimis use because “‘no reasonable trier of fact could find the tattoos as they appear in NBA 2K to be substantially similar’ to the tattoo designs Solid Oak obtained license to.”
I always thought that I had the right to license what I look like to other people for various merchandise, television appearances, and other types of creative works, like video games.
The other two defenses were left to be decided by the jury at trial. Unlike in Solid Oak, the judge here believed there were triable issues of facts to be decided by the jury on whether an implied license extended to video games and whether the fair use factors weighed in the defendants’ favor. The defendants argued Orton was granted an implied license by Alexander to use her designs as part of his public image, and by extension, allowed Orton to sublicense it to WWE. As for fair use, the use of a copyright is permitted when it is considered transformative, and the defendants argued that because the tattoos’ depiction was tiny and only a small part of the games it was transformative. On these defenses, the jury ruled in favor of Alexander. However, they awarded only $3,750 in damages and denied her any of the games’ profits after finding the tattoos did not contribute to the games’ success.
From here, there are many lessons to be learned on both sides. While the damages awarded are disappointing here, it stands as a lesson to tattoo artists that they must register their copyrights. It is the only way to get adequate awards at trial that make these suits worthwhile and garner respect from videogame companies who may otherwise not fear litigation that results in such a low pay-out.
If Alexander had registered her tattoos, she could have received statutory damages of up to $150,000 per registered copyright. Tattoo artists should register their tattoos as soon as possible to claim these statutory damages because it is likely that without registration, artists who bring these claims will get similarly low awards like Alexander.
For companies, this case may incentivize them to work out licensing deals prior to use to avoid costly litigation and high-damage awards (if the copyright is registered) since they are no longer slam-dunks to win these suits. And licensing deals would be in the best interest of both sides here. Importantly, for tattoo artists, it will avoid hurting their client base. Athletes have expressed frustrations with these copyright cases. As Lebron James has even expressed, “I always thought that I had the right to license what I look like to other people for various merchandise, television appearances, and other types of creative works, like videogames.” While tattoo artists are within their rights to protect their original works, public litigation against their clients’ profitable endeavors is not a good look and is unlikely to keep them or other athletes as clients. A licensing deal will protect their copyright and their business endeavors.
A future problem tattoo artists may run into is if video game companies decide proper depictions of tattoos are not worth the cost or liability. Take-Two Interactive themself has created its own versions of tattoos on digitized athletes to avoid trademark infringement with Pepsi and Superman. So far, this tactic has worked and could easily be used to avoid copyright infringement.
But right now, these suits are not going away as videogame companies are still going to have to contend with their current and past infringements on tattoo copyrights. Recently, another suit filed against Take-Two Interactive on similar grounds has been allowed to proceed to trial for a jury to decide the factual issues of whether it was de minimis use, fair use, and/or an implied license. Given the result here, it is likely that this, and other cases that may arise, will now be settled.
McKenna Fono attended Texas A&M University, where she majored in Political Science. She is interested in administrative and regulatory legal issues in the environmental, energy, and life sciences fields. In her free time, she loves to hike and keep up with college sports.