WWE 2K series maker Take-Two Interactive Software and its subsidiaries 2K Games and 2K Sports are heading to trial over allegations of copyright infringement after a tattoo artist claimed the company reproduced their work without authorization.
As reported by the Hollywood Reporter, an Illinois federal judge handed tattoo artist Catherine Alexander a partial summary judgement after finding that Take-Two had copied her work by recreating them on WWE 2K’s digital representation of wrestler Randy Orton.
Take-Two claimed its use of the tattoos was authorized by an implied license, a fair use doctrine which allows for their inclusion in the WWE 2K franchise. However, because it’s unclear whether Alexander and Orton discussed permissible forms of copying and distributing her work, the judge has dismissed that defense.
The company also asserted that its use of the tattoos is ‘de minimis,’which is legalese for minimal or trivial, but because Take-Two decided to copy Orton’s tattoos in their entirety, the court has also cast doubt on the viability of that argument.
“There is disputed evidence regarding the value of the copyright tattoo works to the video games. Defendants argue the evidence establishes that consumers do not purchase WWE 2K because of the tattoos. But other evidence shows that consumers did purchase WWE 2K for its authenticity to the wrestlers’ appearance,” said the judge.
“In particular, Defendants admit that consumer response is a consideration to their development of WWE 2K and the design choices made. They also acknowledge that consumers expect there to be authenticity in the video 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.
“Additionally, Alexander’s expert addresses the importance of authenticity to drive sales and profits. Thus, an issue of material fact exists as to whether Alexander suffered actual damages based on the value of the infringing use, defeating summary judgment.”
In short, then, Take-Two has openly admitted to copying Alexander’s work, and because their defense isn’t water-tight, it’ll now be down to a jury to decide whether that amounts to copyright infringement.