In 2016, Take-Two, a video game company that is the creator of the NBA 2K series of video games, was sued by Solid Oak Sketches, a company who owns the copyright in several NBA players’ tattoos. Solid Oak argued that the video game series, which seeks to simulate the NBA, infringed on their copyright because the tattoo designs were featured in the game without their consent. These tattoos appear on players like LeBron James, whom the plaintiff argued doesn’t have the authority to grant Take-Two permission to use their designs in the game. This case is still pending in New York federal court.
On April 18, 2018, Take-Two was hit with another tattoo-related lawsuit, this time over their inclusion of professional wrestler Randy Orton’s tattoos in the WWE 2k game. Plaintiff Catherine Alexander argues in her complaint that these tattoos, which contain a bible verse design, a dove, a rose and skulls, are original and expressive and easily recognized by members of the public. In 2009, Alexander contacted WWE about their use of Orton’s tattoos on merchandise they were selling. The WWE offered Alexander $450 “for extensive rights to use and reproduce the tattoo designs on WWE products,” but Alexander refused. Since then, Alexander argued that the WWE 2K video games have reproduced Orton’s tattoos in their games. Though Alexander only registered the tattoos in 2018, she argued in the complaint that Take-Two “knew or should have known” that the tattoos were “copyrighted works” of “original authorship.”
Alexander’s argument will likely hinge on the whether or not Take-Two actually copied her tattoos in their WWE 2K games. The court will have to determine if there is substantial similarity between Orton’s tattoos and the tattoos as they appear in the game. As these games are supposed to represent real players, its likely that these tattoos were reproduced in a way to “make them seem as close to real-life as possible.”
Previously, a judge has ruled that tattoos are copyrightable, and furthermore, NFL players are now advised to get copyright waivers or licenses from their tattoo artists. Take-Two, however, will likely argue, as they did in the NBA 2K Lebron James tattoo litigation, that their use of the tattoos is protected by the fair use doctrine, or the “de minimis” use doctrine, “which allows for a tiny amount of work to be legally used.”
Adele Zhang is the Online Content Chair and an Entertainment Highlight Contributor for the Harvard Journal of Sports and Entertainment Law and a current first year student at Harvard Law School (Class of 2020).