Tattoo Artist Granted Summary Judgment on Copyright Infringement Claim Against WWE

Steven T. Lowe

On September 26, 2020, Judge Yandle for the United States District Court for the Southern District of Illinois granted tattoo artist Catherine Alexander’s Motion for Partial Summary Judgment in her copyright infringement lawsuit against World Wrestling Entertainment Inc. (“WWE”) and Take-Two Interactive Software Inc. (“Take-Two”). Alexander claimed WWE and Take-Two copied the tattoos she inked on WWE professional wrestler Randy Orton and digitally reproduced them in their video game depiction of the wrestler.

In her motion for summary judgment, Alexander argued that because defendants have admitted to “copying her original copyrighted tattoo artworks without permission,” there is no dispute of material facts as to her copyright infringement claim. In the order, the court noted that it is undisputed that “Alexander holds valid copyrights for the five tattoos at issue and that Defendants copied her copyrighted works.”

Judge Yandle rejected WWE and Take-Two’s requests for summary judgment on their defenses against Alexander’s claim. The defendants attempted to assert that their “reimaging” of the tattoos was protected by the fair use doctrine. The fair use doctrine permits the use of copyrighted material for specific purposes, such as research, parody, and commentary. Especially, defendants argue that their depiction of the tattoos is “transformative because the size of the tattoos is small and difficult to observe, the videogame is an entire virtual world whereby the tattoos are an element utilized to create a ‘fun, lush experience for game users,’ and the tattoos are a tiny fraction of the videogames.” WWE and Take-Two also tried to assert the copying of Orton’s tattoos was protected by an implied license because “Orton granted WWE the right to license his likeness to third parties” and thus, “impliedly licensed Orton to disseminate and display the tattoos as a part of his likeness.” The court refused to adopt these positions, stating there were factual questions surrounding those defenses.

Finally, the defendants attempted to assert their use of the tattoos is de minimis, meaning their use of the tattoos was “so trivial as to fall below the quantitative threshold of substantial similarity.”  Judge Yandle denied WWE and Take-Two’s attempt to use this as an affirmative defense, stating, “[T]he defense has been successfully invoked to allow copying of a small and usually insignificant portion of the copyrighted works, not the wholesale copying of works in their entirety as occurred here.”

Alexander is represented by R. Seth Crompton of the Holland Law Firm; and Anthony G. Simon, Anthony R. Friedman and Benjamin R. Askew of The Simon Law Firm PC.

WWE is represented by Jerry S. McDevitt and Curtis B. Krasik of K&L Gates LLP.

Take-Two and the other defendants are represented by Joshua Simmons and Dale Cendali of Kirkland & Ellis LLP.

The case is Alexander v. Take-Two Interactive Software Inc. et al., case number 3:18-cv-00966, in the U.S. District Court for the Southern District of Illinois.