Take-Two and World Wrestling Entertainment are headed to trial after a judge ruled WWE 2K games copied the work of an artist responsible for some of pro wrestler Randy Orton’s tattoos.
Orton’s arms are fully inked from shoulder to hand, an intrinsic part of the four-time World Heavyweight Championship belt holder’s stage appearance. According to The Hollywood Reporter, those designs include tribal tattoos, skulls, a bible verse, and a dove and rose, all of which are the work of artist Catherine Alexander. She’s now suing Take-Two and WWE for reproducing her work in video games without her permission.
“[A]n issue of material fact exists as to whether Alexander suffered actual damages based on the value of the infringing use,” Illinois federal judge Staci Yandle wrote in a court order over the weekend. What that means is that the lawsuit will now go to trial for a jury to decide if the appearance of the tattoos in WWE 2K16, 17, and 18 amounts to copyright infringement and if so how much money the video game publisher will owe Alexander as a result.
While Orton licensed his likeness to WWE which in turn licensed it to Take-Two, what’s at issue is whether Alexander retains some rights to the tattoos once they start being reproduced outside of Orton’s body. One example of this is a faux-sleeve with Orton’s tattoos on it WWE was apparently thinking of selling in 2009. According to her deposition, Alexander approached the organization about it at the time and someone in its legal department reportedly laughed in her face before eventually offering her $450, which she declined at the time while still making clear she hadn’t given WWE permission to reproduce her designs.
Take-Two faced a similar lawsuit back in 2016 over LeBron James’ tattoos in the NBA 2K games. It won that case earlier this year with a judge deciding that the in-game tattoos were too hard to make out to be considered obvious copies of the originals, and also that tattoos were part of James and the other players’ likenesses, giving them the right to license it along with their image to the NBA and Take-Two.
That seemed to settle the issue, but the fact that a similar dispute is now headed to a jury trial could lead to a different outcome in the WWE 2K case. Or Take-Two could simply use some small portion of the profits from its microtransaction-riddled games to settle out of court.