6
Oct
2022
Tattoos and Fair Use – The Alexander v. Take-Two Case
While Southern Illinois – and its concomitant U.S. District Court – isn’t necessarily a hotbed of copyright litigation, that changed last week. In 2018, Catherine Alexander sued a number of video game companies as well as World Wrestling Entertainment (WWE) for copyright infringement in the Southern District of Illinois (docket here). Years earlier, she had done extensive tattoos on the wrestler Randy Orton, who subsequently found great success in the WWE. He was included in numerous iterations of the “WWE 2K” videogame line, with his tattoos faithfully replicated.
In September of 2020, the court denied summary judgment, holding triable issues of fact regarding whether the use was fair and whether an implied license existed. The trial was held at the end of September, and at the end of the week the jury returned a verdict for Alexander – but the victory was short lived as damages of only $3,750 were awarded. In the end the case left no-one satisfied – the game publisher and WWE still have difficult clearance issues, and the recovery surely was not what Alexander was hoping for. Experts have also criticized the jury instructions for the failure to include a question of implied license even though both sides asked for it – and indeed that was the main question the jury should have been answering.
SIU Law 2L Taylor Ingram was there for the second day of the trial (Tuesday, September 27, 2022), and recorded some impressions of the case, which I’ve shared below. I think they shed some light on the case and the real people involved – her observations and thoughts follow below: