Tattoo Artist’s Suit Against Digital Recreation Survives Motion to Dismiss

A lawsuit against Take-Two Interactive Software, World Wrestling Entertainment, and others, filed by tattoo artist Catherine Alexander has survived a motion to dismiss. The defendants’ motions were granted in part and reversed in part, leaving most of Alexander’s claims intact. The copyright lawsuit concerned the digital representation of tattoos that Alexander inked between 2003 and 2008. 

Defendants are a developer, publisher and marketer of interactive entertainment and video games, an entertainment company promoting entertainment media, video game publishers, and video game developers. The plaintiff is represented by Holland Groves and the Simon Law Firm. The defendants are represented by Kirkland & Ellis and Donovan Rose Nester.

Plaintiff Alexander claims that she owns copyrights for the tattoos she inked on WWE star Randy Orton. “She inked an upper back tribal tattoo on Orton in 2003, several tribal tattoos on Orton’s forearms and upper arms in 2003, and sleeve tattoos on Orton’s arms in 2008, consisting of a Bible verse design, dove, a rose, and skulls.” Alexander contacted WWE about Orton’s tattoo designs on merchandise for sale by WWE. Afterward, WWE offered “$450 for extensive rights to use and reproduce the tattoo designs on WWE products.” Plaintiff Alexander did not accept and stated she was not permitting the reproduction of her designs. She filed copyright applications for the designs. Additionally, defendant Take-Two produces WWE-licensed video games, which feature Orton and his tattoos. Alexander claims that these video games also infringe.

The defendants argued that Japanese game developer Yuke’s and WWE should be dismissed from the case for lack of personal jurisdiction in the state of Illinois. The plaintiff stated that WWE had held promotional events in Illinois, during which it also sold the video games to Illinois residents, which indicates that “WWE expressly directed its activities toward Illinois.” The court sided with the plaintiff. Promotional events featuring Randy Orton in Illinois over the past three years were part of a larger 38 live event series; it also directed to its TV programming and website in Illinois, which the Court determined illustrates that it “expressly aimed its activities at Illinois.” The plaintiff also alleges that WWE should have known she was an Illinois resident, as was demonstrated by the $450 for her work.

The judge dismissed the case as to Yuke’s.  Her “allegations are insufficient to establish that these defendants have minimum contacts with Illinois, that they purposefully availed themselves of the benefits and protections of Illinois law, or that there is a real relationship between Illinois and the Yuke’s Defendants. Nor has Plaintiff established that Yuke’s a Japanese corporation has the necessary continuous and systematic general business contacts such that it is essentially ‘at home’ in the United States for purposes of jurisdiction.”

The defendants also unsuccessfully argued that the case should be dismissed because the plaintiff does not state a copyright infringement claim; specifically, “she does not hold certificates of registration for the tattoos which is a prerequisite to filing suit” and “the Amended Complaint is impermissibly vague.” The plaintiff registered five of the tattoos in March 2018, before filing for the suit. One of the tattoos, a Bible verse, was rejected for copyright because it did not have the required authorship for a copyright claim. Consequently, the defendants’ motion to dismiss as to the Bible verse tattoo was granted, but the was is denied for the other tattoos.