WWE, 2K Seek New Trial In Randy Orton WWE 2K Tattoo Lawsuit

WWE and 2K are looking for a new trial in the lawsuit over Randy Orton’s tattoos in the WWE 2K series. As reported, the long-delayed trial filed by tattoo artist Catherine Alexander reached its conclusion in September with the jury finding for Alexander. Alexander, who had argued that the tattoos on Orton were her original designs that she owned the rights to, won the suit but was only awarded 3,750 in compensation over the matter.

PWInsider reports that WWE, Yukes, 2K and the rest of the defendants have filed a motion with the US District Court for the Southern District of Illinois seeking a voiding of the verdit and a new trial being ordered. The defendants are asking for a judgment as a matter of law and, if not awarded that, a new trial regarding “the issues of fair use, waiver, estoppel, and license under Federal Rule 59.”

It was always a distinct possibility that the defendants would appeal despite the small verdict because of the likelihood for the verdict setting a precedent that could result in more lawsuits and verdicts over the use of tattoos in other games. In the filing, the defendants argue that the issue of fair use is “for the Court to decide, not the jury” and said, “Based on the admitted and undisputed facts and consistent with both Supreme Court and Seventh Circuit law, this is precisely a scenario in which fair use applies.”

They also argue that according to the evidence, consumers “would not, and did not” buy the WWE 2K games because of Orton’s tattoos, further arguding that their “purpose in including” the tattoos is not the same as Alexander’s “purpose in creating them.” They go on to argue that:

“tattoos are bound up with the rights of the individuals on whom they are inked, and unlike paintings or other artwork, are permanent parts of a person’s body. This makes them far from the core of what copyright law is designed to protect. Further, these particular Tattoos were copied from pre-existing sources and used common tropes, making them not creative, and were inked on a famous wrestler on whom they are regularly observed in public.”

WWE and the other defendants also argue that they only used as much of the tattoos as needed for their “transformative purpose” and said that they didn’t harm the market for tattoos as “there is no market for licensing the Tattoos in video games. In fact, there is a public benefit from allowing tattooed people to show freely and allow others to show their bodies. All four factors thus favor a finding of fair use, and Defendants are entitled to judgment on this issue as a matter of law.”