PWInsider reports that a judge has eliminated a possible defense in the ongoing WWE-2K lawsuit over Randy Orton’s tattoos. Judge Staci M. Yandle is presiding over the trial and issued a memorandum and order yesterday. The defendants wanted to argue that the use of Randy Orton’s tattoos in the game were ‘de minimis’ (too minor) to be considered a matter of law. Yandle ruled otherwise.
Tattoo artist Catherine Alexander is suing WWE, Take-Two Interactive Software, 2K Games, Inc., 2K Sports, Inc., Visual Concepts Entertainment, Yuke’s Co., Ltd. and Yuke’s LA Inc. The trial begins next week and Orton has been called as a witness.
The memorandum and order reads:
Plaintiff Catherine Alexander filed the instant lawsuit against Defendants Take-Two Interactive Software, Inc., 2K Games, Inc., 2K Sports Inc., Visual Concepts Entertainment (the “Take-Two Defendants”), and World Wrestling Entertainment, Inc. (“WWE”) asserting copyright infringement under 17 U.S.C. § 501. On September 26, 2020, this Court granted Plaintiff’s motion for partial summary judgment and denied Defendants’ motion for summary judgment (Doc. 228). This matter is now before the Court sua sponte to clarify the Court’s Summary Judgment Order(“Order”).
Alexander moved for partial summary judgment on the issue of copying. In granting Plaintiff’s motion for summary judgment, the Court found that it was undisputed that Alexander holds valid copyrights for the five tattoos at issue and that Defendants copied her copyrighted works. Therefore, the Order is amended to clarify this Court’s finding that, as a matter of law, Alexander owns a valid copyright to the five tattoos at issue in this lawsuit. Given that Defendants copied Alexander’s copyrighted tattoos, they are liable for copyright infringement unless they can establish an affirmative defense to their usage. Defendants asserted three affirmative defenses to their utilization of the tattoos in their motion for summary judgment: the existence of an implied license, the fair use doctrine, and use of the tattoos was de minimis.
In denying Defendants’ motion regarding the de minimis defense, the Court noted its doubt that the defense was viable under Seventh Circuit precedent and that the defense had been successfully invoked in other circuits to allow copying of a small and usually insignificant portion of the copyrighted works, not the wholesale copying of works in their entirety as occurred here. Therefore, the Court amends and clarifies its Order to reflect that, as a matter of law, the de minimis defense is not viable in this case and Defendants cannot assert the defense at trial.
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