A big decision has been made in the Randy Orton WWE 2K tattoo lawsuit case, with the trial set to commence on September 26.
To quickly recap, in April 2018, Catherine Alexander – Orton’s tattoo artist – filed a lawsuit against WWE, Take-Two Interactive Software Inc, 2K Games Inc, 2K Sports Inc, Visual Concepts Entertainment, Yukes Co Ltd, and Yukes LA Inc.
In the lawsuit, she claims that those parties have infringed on her copyright by using the tattoo work she did on Randy Orton in video games without her permission.
In the latest development, as documented by PWInsider, the defendants had planned to argue the “de minimis” defense, which basically means they would argue the situation is too small to be considered a matter of law.
Judge Staci M Yandle, who is presiding over the trial, has issued an order to strike down that potential defense, so the defendants won’t be able to use it.
Here is the order that was issued:
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.
Randy Orton himself is scheduled to appear in court for the trial next week as a witness.
We’ll continue to keep you updated with further details on the case and trial as they emerge.
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