of the branded dept
Why isn’t this tattoo copyright dying? We’ve talked several times over the past few years about a celebrity faithfully reproducing his or her likeness, in an authorized manner, in video game media. Take-Two has been involved in more than one of these disputes, which usually involve a tattoo artist or company claiming copyright to a tattoo design and arguing that its reproduction in video games constitutes copyright infringement. In the past, courts have managed to rule at the summary judgment stage that these claims are nonsense, that the images are fair use for a variety of reasons, mostly related to the de minimis nature of the images in the overall game, and have established for second attempt.
But then there’s the Randy Orton case with Take-Two’s WWE 2K series. In that case, the court dropped the case before a jury, arguing that the de minimis argument was invalid because the entire tattoo was depicted. But that’s not the de-mimimis argument that was actually made. Instead, the argument is that the tattoo represents such a small percentage of the total creative work that it falls under fair use.
Aside from that, what remains is the awkward question or scenario that I keep copying and pasting into each of these posts:
Put another way, you could say that by providing the player with Solid Oak’s designs, the company seems to think it can control the players’ ability to take advantage of their own likenesses. That this draws the mind to very inconvenient historical parallels was apparently no problem for Solid Oak.
Yeah, well, the jury in the Randy Orton case seems to think this is all fine. The jury found for tattoo artist Catherine Alexander in the case that Take-Two indeed infringed her copyrights on Orton’s tattoos. However, the price probably left Alexander wondering if this was all worth it.
On Friday, a federal court jury in southern Illinois awarded artist Catherine Alexander $3,750 after she ruled in her favor in her lawsuit against Take-Two Interactive Software, 2K Games and World Wrestling Entertainment. The amount may seem small, but according to numerous publications in the art industry, the case sets a ‘fascinating precedent’.
So two things here. First off, this trial started in 2018 and I can’t possibly believe that $3,750 is worth the time and money Alexander spent on all of this. If that’s where we could leave this whole discussion it would be a slightly irritating result and that’s it. Unfortunately, there’s that last bit about the precedent this sets.
And that certainly feels like a huge problem because the precedent being set is that a person can contract an artist to put a tattoo on their body and that suddenly reduces that person’s autonomy over how their own body can be portrayed. in other media. Or, more succinctly, getting a tattoo now means losing some control over licensing your own image and likeness.
And what else we want to say on the subject, that is: not what the framers had in mind when the copyright was drafted.
According to Video Games Chronicle, “While the final amount may be considered relatively small, it sets a potential precedent for other tattoo artists to make similar claims if their designs are replicated on video game athletes.”
Uh, yes. I would think we will now see an explosion in the number of tattoo related infringement cases coming to court and each of them will point directly to this ruling as a reason to escape summary judgment.
And if I’m an athlete or a celebrity, you better believe I’m thinking long and hard about whether it’s worth getting a tattoo without all kinds of legal waivers. This ruling makes fame less lucrative, as media and gaming companies will be less interested in faithfully portraying these individuals. And maybe it’s also made the tattoo industry less lucrative if celebrities suddenly have to worry about these things when they decide to get a tattoo.
All for a few thousand dollars? Cool.
Filed Under: catherine alexander, copyright, fair use, implied license, randy orton, tattoos
Companies: take two, take two interactive
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