Randy Orton to testify for tattoo lawsuit

Veteran WWE Superstar Randy Orton is scheduled to testify in the trial for the lawsuit tattoo artist Catherine Alexander has brought against WWE, Take-Two Interactive, 2K Games, 2K Sports, Visual Concepts Entertainment, Yuke’s Co., and Yuke’s LA.

Orton is currently scheduled to be a witness in the trial, which will go before the United States District Court of the Southern District of Illinois. The jury trial has been delayed numerous times over the past few years, but it is now scheduled to commence on Monday, September 26. The trial is expected to take place over five days.

As we’ve noted, it was first reported back in 2018 that Alexander had filed a lawsuit against WWE and Take-Two, the publisher of the WWE 2K series of video games, and other parties. Alexander, who had done Orton’s ink since 2002, claimed she owned the copyrights to the designs that were being used in the WWE video game. She accused WWE and 2K of copyright infringement because Orton’s tattoos were being depicted in the games. It was reported in 2018 that Alexander raised the issue with WWE in 2009, and was offered just $450 for the right to the designs. She declined that offer. It was also reported in August 2018 how the court had decided that all discovery for the case needed to be finished by January 7, 2019, and that a settlement conference was scheduled for April 16, 2019. WWE and 2K tried to have the lawsuit dismissed in the United States District Court of Southern District of Illinois in August 2020, due to the court not having jurisdiction on them.

It was then reported in September 2020 that Illinois federal Judge Stacy Yandle handed Alexander a partial summary judgment, by determining that WWE and Take-Two had indeed copied her work for Orton. A jury trial was set to decide whether that was copyright infringement, the first copyright trial to ever focus on the unauthorized reproduction of tattoos. The judge also denied the defendants’ own motion for a summary judgement by deciding that certain questions are triable. Those questions include whether Alexander impliedly licensed Orton to disseminate and display the six tattoos that she inked for him.

The tattoos include tribal art on Orton’s forearm, a Bible verse on his arm, a dove, a skull, and a rose. Alexander’s original suit claimed that all of her tattoos on Orton are her original designs, and that she never gave the defendants permission to recreate them in WWE video games. She also stated that the designs, done between 2002 and 2008, are “easily recognized by his fans and members of the public.”

Orton was never named as a defendant/plaintiff in the lawsuit, and he’s never publicly commented on the matter. However, he did comment in a declaration. In regards to whether Orton got a license from Alexander, Orton previously stated in a declaration that he understood the tattoos to be his personal expression, and was never told he would need further permission to make them visible.

It was also reported in September 2020 how Alexander first approached WWE in 2009 after hearing a rumor that WWE was planning to introduce a new line of faux sleeves to be worn by fans pretending to be their favorite WWE Superstars. She contacted WWE’s legal department and introduced herself as Orton’s tattoo artist. Alexander told WWE legal that she was willing to negotiate for any reproductions of her work. She claims she was laughed at by the WWE employee.

“The person laughed at me and said I had no grounds, and they can do what they want with his images,” Alexander previously testified at a deposition. “He is their wrestler.”

The jury will decide several issues when the trial commences next week – if Orton was automatically granted an implied license to have his tattoos recreated in licensed WWE products, if the tattoos would be considered copyright infringement if Orton did not have the license, if the tattoos fall under fair use, if damages are due to Alexander, and if the tattoos are too trivial or minor to merit consideration legally.

There have been a lot of eyes on this case since the lawsuit was first brought as numerous video games feature professional athletes and their recreated tattoos, and this case could set a legal precedent for other tattoo artists to follow.

Take-Two beat a similar copyright suit in March 2020 in New York, brought by a company that claimed to own the tattoo designs featured on the bodies of NBA stars LeBron James, Eric Bledsoe, and Kenyon Martin. The judge in that case ruled that the small display of tattoos in a video game were not substantially similar to what were on the basketball players, even if the use of the copyrighted material was de minimis (too trivial or minor to merit consideration legally), and that there was a reasonable inference of an implied license, and that Take-Two also had a good case for fair use. This was seen as a complete win for Take-Two, which put some minds at ease in the entertainment industry. The Hollywood Reporter notes that even if the use of the tattoo designs were a de minimis part of the WWE 2K games, the case comes in the one circuit in the country that has not explicitly recognized a trivial-taking as a viable affirmative defense, which is unfortunate for WWE and Take-Two.

The trial was initially pushed back because the original presiding judge retired from the bench, requiring Judge Yandle to take over. The trial was then pushed back to June 2020 at the request of 2K and other plaintiffs. It was delayed twice this year, most recently due to COVID-19, but will now begin next week.

Orton has not wrestled since he and Matt Riddle took a loss to Undisputed WWE Tag Team Champions The Usos on the May 20 SmackDown, which was the match where the RAW and SmackDown tag team titles were unified. Orton has not been seen since then, and WWE noted on TV how he was dealing with a back injury. It was then reported that Orton may need surgery, which would likely keep him away from the ring for the rest of 2022, and Riddle also indicated Orton had a “big operation” planned. There is still no timeframe for Orton’s return to the ring.