WWE Superstar Randy Orton is scheduled to testify in the trial of tattoo artist Catherine Alexander’s lawsuit against WWE, Take-Two Interactive, 2K Games, 2K Sports, Visual Concepts Entertainment, Yuke’s Co., and Yuke’s LA.
Orton is scheduled to testify in the trial, which will take place in the United States District Court for the Southern District of Illinois. The jury trial has been postponed several times in recent years, but it is now set to begin on Monday, September 26. The trial is scheduled to last five days.
As previously stated, Alexander filed a lawsuit against WWE and Take-Two, the publisher of the WWE 2K video game series, as well as other parties in 2018. Alexander, who had done Orton’s tattoos since 2002, claimed ownership of the designs used in the WWE video game. Because Orton’s tattoos were depicted in the games, she accused WWE and 2K of copyright infringement. According to reports from 2018, Alexander raised the issue with WWE in 2009 and was offered only $450 for the right to the designs. She turned down the offer. In August 2018, it was also reported that the court had decided that all discovery for the case needed to be completed by January 7, 2019, with a settlement conference scheduled for April 16, 2019. WWE and 2K attempted to have the lawsuit dismissed in August 2020 in the United States District Court for the Southern District of Illinois due to the court’s lack of jurisdiction over them.
In September 2020, it was reported that Illinois federal Judge Stacy Yandle granted Alexander a partial summary judgement, finding that WWE and Take-Two had indeed copied her work for Orton. A jury trial was scheduled to determine whether that was copyright infringement, the first copyright trial to ever focus on unauthorised tattoo reproduction. The judge also denied the defendants’ own motion for summary judgement, ruling that certain issues must be tried. Among these are whether Alexander impliedly authorised Orton to disseminate and display the six tattoos she inked for him.
Orton’s tattoos include tribal art on his forearm, a Bible verse, a dove, a skull, and a rose. According to Alexander’s original suit, all of her tattoos on Orton are her original designs, and she never gave the defendants permission to recreate them in WWE video games. She also stated that the designs, which were created between 2002 and 2008, are “easily recognized by his fans and members of the public.”
Orton was not named as a defendant/plaintiff in the lawsuit, and he has made no public comments about it. He did, however, make a declaration. In terms of whether Orton obtained 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 additional permission to display them.
In September 2020, it was also revealed that Alexander approached WWE in 2009 after hearing a rumour 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 got in touch with WWE’s legal team and introduced herself as Orton’s tattoo artist. Alexander informed WWE legal that she was open to negotiating the reproduction of her work. She claims the WWE employee laughed at her.
“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.”
When the trial begins next week, the jury will decide whether Orton was automatically granted an implied licence to have his tattoos recreated in licenced WWE products, whether the tattoos would be considered copyright infringement if Orton did not have the license, whether the tattoos fall under fair use, whether damages are due to Alexander, and whether the tattoos are too trivial or minor to merit legal consideration.
Since the lawsuit was filed, there has been a lot of attention focused on this case because 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 defeated a similar copyright suit in March 2020 in New York, brought by a company claiming ownership of tattoo designs seen on NBA stars LeBron James, Eric Bledsoe, and Kenyon Martin’s bodies. The judge in that case ruled that even if the use of the copyrighted material was de minimis (too trivial or minor to merit legal consideration), there was a reasonable inference of an implied license, and Take-Two also had a good case for fair use. This was viewed as a complete victory for Take-Two, putting some minds at ease in the entertainment industry. The Hollywood Reporter points out that, even if the tattoo designs were a minor part of the WWE 2K games, the case is being heard in the only circuit in the country that has not explicitly recognized trivial-taking as a viable affirmative defence, which is unfortunate for WWE and Take-Two.
The trial was initially delayed because the original presiding judge retired, forcing Judge Yandle to take over. At the request of 2K and other plaintiffs, the trial was then rescheduled for June 2020. It was postponed twice this year, most recently due to COVID-19, but it will now start next week.
Orton hasn’t wrestled since he and Matt Riddle were defeated by Undisputed WWE Tag Team Champions The Usos on May 20 SmackDown, in the match that unified the RAW and SmackDown tag team titles. Orton hasn’t been seen since, and WWE announced on TV that he was suffering from a back injury. It was then reported that Orton may require surgery, which would likely keep him out of the ring for the rest of 2022, and Riddle also stated Orton was planning a “big operation.” Orton’s return to the ring has yet to be scheduled.
