If you’re a sports fan, you may be familiar with 2K Games’s various releases such as “NBA 2K18” and “NHL Supercard.” For those of us who aren’t so athletically inclined, you might be more familiar with 2K’s other classics such as “Borderlands” and “Bioshock”.
In late-2015, 2K Games released “WWE 2K16”, a game featuring famous wrestlers. Among them, Randy Orton is a wrestler prominently featured in the game. Since then, 2K Games has also released “WWE 2K17” and “WWE 2K18” which also prominently features Mr. Orton.
Orton’s upper-back and arms feature various tattoos designed by Illinois-based artist Catherine Alexander. In order to mimic Orton’s real-world appearance, 2K’s virtual representation of Orton replicates all of his tattoos.
Alexander wasn’t happy to see the reproduction of the tattoos in the WWE game franchise. The complaint she filed against 2K Games, WWE, Visual Concepts Entertainment, and Yuke’s Co. on April 17, 2018 includes claims of ownership over Orton’s tattoos. This includes the several tribal designs on his upper-back as well as the designs on Orton’s arms consisting of a bible verse, a dove, a rose, and several skulls. Alexander argues that the unauthorized reproduction of the tattoos in the WWE games is sufficient for a claim of copyright infringement.
Interestingly, Alexander noted that WWE had previously offered her $450 for extensive rights to use and reproduce the tattoos on WWE products. While she declined the offer in 2009, this consideration didn’t seem to effect the use of the tattoos in the 2K games WWE franchise.
None of the defendants in the case have filed an answer to the complaint yet, but this is an interesting question- does a tattoo artist own the art that they put on your body? And when replicating a famous person (who has given permission) in a video game, is it infringement if you replicate their tattoos?
In order to be eligible for copyright protection, a work has to meet some requirements: it must be original, it must be *fixed *in a tangible medium of expression, and it must meet a minimum requirement of creativity. Of course, with any area of law, there are a lot more complexities that can come into play. For example, are the tattoos themselves protectable in the first place? If they are, is it possible that 2K’s use of the tattoos can constitute fair use?
This isn’t the first time 2K Games has seen this issue arise. A similar case was filed against 2K Games last year when Solid Oak Sketches claimed that its copyrighted tattoo designs were reproduced without permission in “NBA 2K16”. According to the docket, it appears that the parties to that case may be working on a settlement outside of court. Perhaps this one will do the same, but it will be hard to tell before the answers are in.
Author, Caroline Womack, is a 2L at Quinnipiac University School of Law and primarily studies intellectual property law, focusing on video game and internet law.