WWE and Take-Two attempt escape from tattoo verdict
World Wrestling Entertainment (WWE) and video game maker Take-Two Interactive Software have made a bid to knock down a copyright damages award to a tattoo artist.
In a motion filed Monday, 31 October, the duo urged a judge at the US District Court for the Southern District of Illinois to overturn a jury’s award of approximately $3,750 in damages in a trial over video game depictions of her tattoos on professional wrestler Randy Orton.
Tattoo artist Catherine Alexander sued WWE and Take-Two in April 2018, claiming that the depictions of the tattoos—which include an upper back tribal tattoo and sleeve tattoos consisting of a Bible verse design, a dove, a rose, and skulls—in the “WWE 2K” video games were infringing her copyright.
In early 2020, WIPR reported that WWE and Take-Two had failed to avoid the suit, after Judge Staci Yandle of the Illinois court found that Alexander owned copyright in all but one of a world champion wrestler’s tattoos and allowed the claims to proceed.
Most recently, in late September this year, a jury concluded that WWE and Take-Two’s use of the tattoos was not fair use and that Alexander was entitled to $3,750 in damages.
However, WWE and Take-Two have now asked for judgment as a matter of law on fair use and damages.
Fair use argument
The parties claimed that their depictions of the tattoos are fair use, citing factors in their favour, including that the “tattoos are bound up with the rights of the individuals on whom they are inked, and unlike paintings or other artwork, are permanent parts of a person’s body”.
The motion added: “This makes them far from the core of what copyright law is designed to protect.”
On the damages issue, WWE and Take-Two claimed that Alexander closed her case-in-chief without presenting legally sufficient evidence to prove actual damages or disgorgement of profits.
"In fact, plaintiff admitted she could not identify any business or clients that she lost due to Mr Orton’s tattoos. As a result, plaintiff’s counsel invited the jury in his closing to speculate about what actual damages plaintiff might have suffered. That is not evidence, and no reasonable jury could have awarded any actual damages in this case, because there was no evidence for it to do so,” said the motion.
The pair added that, with regard to disgorgement, Alexander had failed to present any evidence of a causal nexus between the alleged infringement and her claim for defendants’ profits.
The motion said: “There is no evidence in the record that anyone bought WWE 2K for the tattoos, and in fact, all of the evidence in the record indicates the opposite. Although the jury’s verdict shows that it recognised no such causal nexus existed, the lack of any proof whatsoever further warrants judgment as a matter of law in favour of defendants.”
