Paltry Damages Awarded In Take-Two’s Copyright Loss Over Randy Orton’s Tattoos Wiped Out On Appeal

Going all the way back to 2020, we have been discussing one of a series of copyright disputes centered on video games and their faithful depictions of real-life tattoos within them. While the first of these were related to depictions of NBA players in Take-Two’s NBA2K series, which the company generally successfully defended, one outlier was for Take-Two’s WWE 2K series, in which it faithfully reproduced the tattoos on Randy Orton, a wrestler. That case went to trial, in which the jury ultimately found for the tattoo artist, Catherine Alexander. However, the trial that took roughly 2 years and who knows how much in legal fees to conduct ultimately resulted in the jury awarding Alexander damages in the amount of $3,750. How in the world could that possibly be worth all this trouble?

Trouble that extends far beyond a four-figure damage sum, too. After all, the real damage in all of this is the precedent it sets. The idea that someone receiving a tattoo, creative endeavor though it may be, might suddenly lose some rights over the depiction of their own image and likeness is absurd. Absurd and, frankly, very problematic when it comes to what is essentially a play at ownership over a portion of a person’s body.

So, when Take-Two petitioned the court for motion for judgment as a matter of law, arguing both that the jury erred in considering its fair use defense and that the jury’s damage award, paltry though it might be, was based on undue speculation, I had hoped that the precedent might be reversed.

It was not. The court has instead found, in large part due to the limits on what it was allowed to consider, that the jury was reasonable in its finding that Take-Two had indeed infringed upon Alexander’s copyright rights. On the other hand, the court also found that Alexander and her witnesses presented no evidence of actual or potential monetary injury, and so the damages in the case have been nullified to zero.

“Alexander presented no evidence at trial that would support the jury’s damages award. There was no evidence of either a hypothetical lost license fee or the value of the infringing use to the infringer. Alexander’s expert, Dr. Jose Zagal testified that he believed a portion of the sales and profits of the video games were attributable to the five tattoos because Defendants needed Orton as a character in his game and he needed to have his tattoos. However, Dr. Zagal did not conduct an analysis of how much the video games’ sales or profits were attributable to the tattoos. Ryan Clark, Alexander’s expert, also offered no opinion regarding damages. Further, Alexander testified that she has never licensed a tattoo for use in any medium, and that she could not identify any business or clients that she lost due to Orton’s tattoos.”

As Eric Goldman rightly notes, this is no cause of celebration. While it’s a bit funny that it took four years worth of a legal battle to get all the way to a judgment that both finds that Take-Two infringed on Alexander’s copyrights but awards her precisely zero in damages, this judgment also further solidifies the notion that depicting a famous person who has tattoos is somehow infringement.

All of the questions around a tattooed person’s personal autonomy remain as a result.