Alexander, the publisher insists, created the tattoos for Orton to display on his body whereas Take-Two transformed the tattoos as part of a new creation: a wrestling video game.

Alexander asserts she and Take-Two possessed the same purpose: display tattoos on Orton’s body. One factor is whether the copying has a different purpose from that of the creator. Take-Two also insists it could replicate tattoos under the doctrine of fair use, which permits copying under certain circumstances. Is Judge Swain or Judge Yandle correct? Ryan Vacca, an intellectual property law professor at UNH Franklin Pierce School of Law, contends that “norms in the tattoo industry” should “be very important in determining whether an implied license exists.” A key norm in Take-Two’s favor, Vacca maintains, is that “clients have the authority to display and reproduce tattoos even for commercial purposes.” She stressed that it is “unclear Alexander and Orton discussed permissible forms of copying.” Judge Swain concluded that tattooists realized their designs will be publicly displayed. In Solid Oak Sketches v.2K Games, Judge Laura Taylor Swain held in favor of Take-Two in an analogous case involving tattoos of LeBron James and other players in NBA 2K. This same argument persuaded a New York federal judge in March. Under this interpretation, Orton granted WWE the right to license his likeness-tattoos and all. In other words, the tattoos as inked by a needle into the dermis layer of Orton’s skin-which in turn altered his pigment-arguably became part of Orton’s body. Alexander, the publisher insists, impliedly licensed Orton to display her tattoos as part of his own likeness. Take-Two contends that Alexander misunderstands the law. The representative admonished Alexander that WWE “could do what they wanted with Orton’s images because he was their wrestler.” WWE offered Alexander $450 to use her tattoos. “A WWE representative laughed at her,” Judge Yandle wrote. In 2009, she contacted WWE to discuss a faux sleeve depicting her tattoo designs.

She never licensed a tattoo to be replicated. WWE had previously paid Orton for the right to license his name, image and likeness.Īlexander maintains it was unlawful to exclude her from this sequence of payments. Take-Two paid a license fee to WWE for what it believed was the right to invent Orton’s avatar. 26 order, “WWE would have rejected Orton’s videogame persona if it appeared without his tattoos or appeared with tattoos that were different than Orton’s actual tattoos.” District Judge Staci Yandle wrote in her Sept.

Wwe 2k uploading tatoos