Current Events > Who here is good with the legality of things? Any lawyers here for questions?

(+) Yeah! (+)

Case - A tattoo artist is asking for royalties from the WWE for using their tattoo design in their video games without their permission. This tattoo is on Randy Orton, one of the biggest names in the WWE right now.

Why this might be an issue - If the tattoo artist wins this case, and gains money from it, wouldn't that mean that the other tattoo artists that have their art on a WWE Superstar would legally be able to gain money from the WWE's sales of past games as well?

This case is still going on?

A very similar case was decided in 2020: https://www.hollywoodreporter.com/business/business-news/nba-2k-publisher-beats-copyright-suit-lebron-james-tattoos-1286847/

Defendants are entitled as a matter of law to summary judgment dismissing Plaintiffs copyright infringement claim because no reasonable trier of fact could find the Tattoos as they appear in NBA 2K to be substantially similar to the Tattoo designs licensed to Solid Oak, writes U.S. District Court Judge Laura Taylor Swain. The Tattoos only appear on the players upon whom they are inked, which is just three out of over 400 available players. The undisputed factual record shows that average game play is unlikely to include the players with the Tattoos and that, even when such players are included, the display of the Tattoos is small and indistinct, appearing as rapidly moving visual features of rapidly moving figures in groups of player figures. Furthermore, the Tattoos are not featured on any of the games marketing materials.

The judge adds, When the Tattoos do appear during gameplay (because one of the Players has been selected), the Tattoos cannot be identified or observed. The Tattoos are significantly reduced in size: they are a mere 4.4% to 10.96% of the size that they appear in real life. Further, the Players quick and erratic movements up and down the basketball court make it difficult to discern even the undefined dark shading.
According to the opinion, not only cant Solid Oak convince a reasonable fact finder of substantial similarity between real-life tattoos and video game tattoos but also that use of the copyrighted material is de minimis.
And the opinion (read in full here) doesnt rest there.
Writes Swain, Here, the undisputed factual record clearly supports the reasonable inference that the tattooists necessarily granted the Players nonexclusive licenses to use the Tattoos as part of their likenesses, and did so prior to any grant of rights in the Tattoos to Plaintiff.

Previous to that case, it was up in the air, leaning towards the tattoo artist (as they own copyright to the design itself). Barring further challenge, it seems the act of tattooing someone gives implicit liscense to use that design as part of their likeness. There was a similar case involving The Hangover where the wolfpack puts Mike Tyson's tattoo on Egg Helms - they settled, but likely would have lost because they did not meet any of the criteria above.