Every year, millions of dollars are spent by consumers on the newest sport video games. The sports video game genre is dominated by EA Sports and 2K Sports. They both hold licenses to produce games based on official leagues. EA Sports produces the Madden NFL series, the NHL series, the FIFA Series, and the NBA Live series. 2K Sports produces the NBA 2K series and the WWE 2K series.
Each year, sports games are becoming more and more realistic. However, this is leading to a problem for 2K Sports. Randy Orton, a professional wrestler for WWE, has a playable character in WWE 2K. Orton’s character depicts five tattoos that Catherine Alexander, the tattoo artist plaintiff, claims are copyright infringement. Alexander, who holds a registered copyright for each of Orton’s five tattoos, sued 2K Sports and WWE, alleging that they failed to get her consent to include Orton’s tattoos in WWE 2K and are in violation of 17 U.S.C. § 501.
Alexander filed a motion for partial summary judgment on the copyright issue, and Take-Two, the creator of WWE 2K, filed its own cross-motion for summary judgment, alleging that the plaintiff’s copyright claim was insufficient, and requested the Court dismiss the claim. Judge Yandle, in the US District Court for the Southern District of Illinois, granted Alexander’s motion, but denied Take-Two’s.
Judge Yandle held that Alexander held a valid copyright for the tattoos, and that the Defendants copied those tattoos in WWE 2K without her consent. After Alexander showed the Court that the Defendants used the tattoos without her consent, the burden shifted to Take-Two to prove that they were authorized to use the material.
Take-Two argued that they were authorized to use Orton’s tattoos under 3 theories. First, there was an implied license. Second, Take-Two used the tattoos in a fair use exception. Lastly, Take-Two argued that the use was de minimis.
First, Take-Two argued that they had an implied license to use the copyrighted work. Take-Two argues that Orton requested the tattoos, Alexander provided the work and tattooed Orton, and Alexander intended that Orton copy and distribute the tattoos. Judge Yandle found the first two elements satisfied, but she felt there was “a triable issue of fact” regarding whether Alexander and Orton had agreed to replication of Orton’s tattoos.
Second, Take-Two argued that they had a fair use exception under 17 U.S.C. § 107. Fair use exceptions allow individuals to use normally copyrighted material for comment, criticism, education, or other limited purposes. The idea is that the individual changes the copyrighted work enough that it is a new creation. The fair use defense is a high standard, and Take-Two was not able to convince Judge Yandle.
Lastly, Take-Two argued that the use of Orton’s tattoo was trivial and de minimis. Take-Two argued that Orton’s character was not the only wrestler in WWE 2K, the tattoos are difficult to see, and the use of Orton’s tattoos are too trivial for the courts to intervene. Judge Yandle did not find Take-Two’s argument compelling and did not find any precedent to support Take-Two’s de minimis argument.
As a result of Alexander’s partial motion for summary judgment being granted and Take-Two’s cross-motion for summary judgment requesting dismissal of the suit being denied, both parties will be getting ready for a trial to determine the damages Alexander suffered as a result of the infringement. Take-Two is most likely blind-sided by Judge Yandle’s decision because earlier this year they were dragged into federal court for a very similar claim. However, Take-Two successfully motioned for summary judgment dismissing the copyright infringement claims in the Southern District of New York in March 2020. Despite very similar facts, these cases demonstrate how judges can rule one way or another.
When you say that Take-Two used three theories, did they put them all forward at the same instance? Or was it like they tried the first, and when that was unsuccessful, they tried the second, and so on? Also, is there a limit to how many unique theories they could put forth in a single case as defendants?
Hi, Kyler. Great question. Take-Two put forward those theories all at once hoping Judge Yandle would agree with at least one of them. For your second question, there is no set limit. However, a lawyer’s ethical duties come into play depending on how many theories they are attempting to introduce. If the lawyers are presenting theories that are frivolous, the lawsuits can be dismissed and the lawyers can be sanctioned.