An unusual lawsuit between tattoo artist Catherine Alexander and Take-Two Interactive ended with a victory for Alexander, who argued successfully that WWE 2K16, WWE 2K17 and WWE 2K18 reproduced her work without her permission.
The roots of the case go back to 2009, when Alexander tried to negotiate a licensing deal with game publisher Take-Two Interactive for the tattoos she inked on professional wrestler Randy Orton between 2002 and 2008. Take-Two rejected the proposal, but offered her $450 for the right to use the images; she refused, but Take-Two went ahead and used them anyway.
Alexander pursued the matter in court, winning a small victory in 2020 when a judge rejected a request for summary judgment. (opens in a new tab) in favor of Take-Two and instead ruled that the publisher and WWE had in fact copied her work, and that she may have suffered damages as a result. The judge in the case stated that “authenticity” is an important selling point for the WWE games, and that “WWE would have rejected Orton’s video game persona if it appeared without his tattoos or appeared with tattoos that were different than Orton’s actual tattoos.”
In a ruling (opens in a new tab) released September 30 (via VGC (opens in a new tab)), the United States District Court for the Southern District of Illinois came firmly in favor of Alexander, although for a relatively small amount. The appearance of the tattoos in the game does not qualify as fair use, according to the ruling, which awarded Alexander $3,750. The amount was not greater because the court found that none of the profits earned by selling the game could be attributed to the presence of the tattoos.
However, even though the award is relatively meager, it could force other game publishers to take licensing negotiations with other tattoo artists more seriously in the future. (And, likewise, might convince tattoo artists to more aggressively pursue such deals as well.)
This isn’t the first time Take-Two has been sued over tattoos in its video games. In 2016 it was sued by Solid Oak Sketches for work that appeared on Lebron James, Kenyon Martin, and Eric Bledsoe in the NBA 2K games. But in that case, as The Hollywood Reporter noted (opens in a new tab)it won, because the players gave a license to use their likeness to the NBA, which in turn licensed them to Take-Two.