Helen Saulnier 
A jury in the District Court docket for the Southern District of Illinois in the case of Alexander v. Take-Two Interactive Application discovered that the depiction of tattoos on wrestler Randy Orton in a movie recreation released by Get Two Interactive infringed the tattoo artist’s copyright in the tattoos. In this author’s personal view, the District Court docket received it all wrong.
Tattoo artist Catherine Alexander sued Get-Two and 2K Online games in the U.S. District Courtroom for the Southern District of Illinois for depicting tattoos that are basically on Globe Wrestling Enjoyment wrestler Randy Orton in the movie recreation WWE 2K. On a movement for summary judgment, Acquire Two designed the identical arguments that garnered it a get in Good Oak Sketches v 2k Video games. These arguments ended up that (1) Just take-Two’s use of the tattoos was licensed by an implied license, (2) the honest use doctrine insulates their utilization of the tattoos and (3) the tattoos constitute a de minimis aspect of the movie match.
At trial, Alexander testified in 2009, that she contacted WWE’s authorized section to negotiate a license for a feasible faux tattoo sleeve solution depicting her tattoo functions. She testified that a WWE representative laughed at her and mentioned she experienced no grounds and that they could do what they desired with Orton’s photographs mainly because he was their wrestler. She even further testified that WWE then made available her $450 for considerable legal rights to use and generate the tattoo styles on WWE goods. Alexander testified that she declined the supply and advised WWE that she did not grant it any permission to duplicate, replicate, or normally reproduce any of her designs. WWE and Just take Two then unveiled wrestling online video online games “WWE 2K16”, “WWE 2K17”, and “WWE 2K18”, all of which highlighted Orton depicted with his tattoos.
Acquire Two had great motive to believe that in its implied license protection. In Reliable Oak, the courtroom identified that the sports activities figures highlighted in the video video game NBA 2k had an implied license to use the tattoos on their bodies as factors of their likenesses and the online video match publisher’s proper to use the tattoos in depicting the gamers derived from this implied license. A critical element of the court’s getting of an implied license in Good Oak was that the tattoo artist realized their topic was very likely to surface in general public, on tv, in commercials, or in other types of media.
Alexander claimed that she has hardly ever given permission to any of her purchasers to use copies of her tattoo operates in videogames and argued that the WWE and Consider Two are conflating Orton’s legal rights to his personal likeness and right to seem in media with an implied license to use her copyrights in limitless and other business approaches, this kind of as in video clip games. In the ruling on Take Two’s motion for summary judgment, the courtroom identified that it wasn’t obvious no matter whether Alexander or Orton really discussed whether or not and to what extent Orton had authorization to copy and distribute the tattoos and no matter whether any implied license would incorporate sublicensing rights. On this basis, the District court docket denied summary judgment on this affirmative protection.
The District Courtroom also observed that the use was not fair use. The crucial to a getting of good use is no matter whether the new use is transformative does the new function just “supersedes the objects” of the original development, or as a substitute provides one thing new, with a even more objective or distinctive character, altering the to start with with new expression, this means, or information. Get Two argued that its use of the copyrighted tattoos was transformative. Consider Two argued that Alexander inked the tattoos at Orton’s ask for to reflect his own expression whilst Just take Two depicted the tattoos in WWE 2K to depict Orton realistically. The District Court observed a factual dispute in this scenario as to Acquire Two’s intent in making use of the tattoo is effective. Alexander contended she designed the tattoos for the intent of displaying them on Orton’s system and that Choose Two used the tattoos for the exact same purpose to display them on Orton’s human body in the videogames. The court docket recognized Alexander’s argument.
After the court’s ruling on Consider Two’s motion for summary judgment, the issue proceeded to trial. Seemingly, soon in advance of trial the District Court docket held that the de minimis use defense was not applicable. Then, it appears that the court refused to allow for the jury to hear guidance on the implied license affirmative protection, even however neither party objected to the jury finding this instruction. In the same way, the courtroom refused to permit the jury to listen to guidelines on the affirmative defense of waiver.
However, the jury did get directions on honest use. On the other hand, as the Supreme Court recently reminded us all in Google LLC v. Oracle The us Inc., Honest use is a blended concern of regulation and point, and the jury is only intended to resolve disputed factual challenges underlying the protection which, according to the District Court’s ruling on Consider Two’s movement for summary judgment, was Just take Two’s function for utilizing the tattoos. Just after that, it was for the court to determine the ultimate applicability of fair use. So, it seems that the jury did not get guidelines on the affirmative defenses it ought to have resolved and fundamentally resolved equally the factual and authorized problems applicable to the truthful use of affirmative defense.
When I am selected that Consider Two will appeal, firms in the resourceful arts this kind of as video recreation publishers, photographers, and manufacturing firms will have to offer with the aftermath of this conclusion. Counsel for Alexander is quoted as declaring that Alexander’s gain at the demo courtroom could “open the floodgates of litigation) and I assume I agree with him.
What the District Courtroom also appeared to overlook was what the useful effect of the ruling would be. Effectively, once a person receives a tattoo, that man or woman no more time has whole command more than that human body element. The tattoo artist has, primarily, a blocking suitable on the depiction of that component of the body with the tattoo. If a superstar has an arm tattoo and that superstar have to be shirtless in a movie, unless of course the producer addresses the tattoo up with make-up- which they extremely effectively may need to have to do right after this ruling, the producer would need to get a launch from the tattoo artist. And what if the tattoo artist didn’t want to grant a launch and for some motive the producer is not able to address the tattoo up, that could necessarily mean that the actor may eliminate the task. Sounds a little bit extraordinary, but this is a logical extension from the selection.
And what if that arm tattoo is totally obvious in the celebrity’s social media images. Technically that would be an infringing general public exhibit of the get the job done, I realize the fundamentals of a paparazzi suing a movie star when that celeb posts a image taken by the paparazzi without having permission, but take into account the truth of a tattoo artist suing a movie star when the movie star normally takes a selfie that captures the tattoo on the celebrity’s arm.
Effectively. this final decision implies that persons who have tattoos no longer have comprehensive handle and autonomy more than their persona. Mainly because a person’s outward visual appearance is part of that person’s proper of publicity, how is not fairly comprehended by the tattoo artist that when a individual will get a tattoo, that tattoo results in being inexorably merged with the person’s likeness and that any appropriate a particular person has in exploiting their likeness would extend to the tattoo. It is almost difficult to fathom normally.
