IP Law Daily Tattoo artists’ copyright infringement suit against video game developers can proceed in part
Tuesday, March 24, 2020

Tattoo artists’ copyright infringement suit against video game developers can proceed in part

By Nicholas Kaster, J.D.

Claims against one Japanese company was dismissed for lack of minimum contacts with Illinois.

The federal district court for the Southern District of Illinois has declined to dismiss a copyright infringement suit brought by a tattoo artist against various major video game developers, with respect to most of the asserted claims. The artist alleged that videogames produced by these firms included unauthorized reproductions of tattoos that she inked on the body of a famous wrestler. The court allowed the suit to proceed as to five tattoos, but granted a motion to dismiss as to a tattoo featuring a Bible verse, which was not properly registered. The court also granted a motion to dismiss by one defendant for lack of personal jurisdiction (Alexander v. Take-Two Interactive Software, Inc.March 18, 2020, Yandle, S.).

Background. The plaintiff, a professional tattoo artist, alleged that she owned a federal copyright for tattoos she inked on the body of WWE superstar Randy Orton between 2003 and 2008. She inked an upper back tribal tattoo on Orton in 2003, several tribal tattoos on Orton’s forearms and upper arms in 2003, and sleeve tattoos on Orton’s arms in 2008, consisting of a Bible verse design, dove, a rose, and skulls. In 2009, she claimed that she contacted WWE about the reproduction of Orton’s tattoos on various items for sale by WWE. In response, WWE offered her $450 for extensive rights to use and reproduce the tattoo designs on WWE products. She alleged that she declined WWE’s offer and told WWE that she did not grant any permission for them to reproduce her designs. The tattoo artist submitted applications to register copyrights on each of the tattoos in March 2015. Since October 2015, various video game developers have released and promoted wrestling video games, which have been available for sale throughout the United States. Orton is prominently featured in the videogames, including his tattoos.

The tattoo artist, a resident of Illinois, filed this action against defendants Take-Two Interactive Software, Inc., 2K Games, Inc., 2K Sports Inc., World Wrestling Entertainment, Inc., Visual Concepts Entertainment, Yuke’s Co., Ltd., and Yukes LA, Inc., asserting copyright infringement. Take-Two is a major developer, publisher and marketer of interactive entertainment and video games. WWE is an entertainment company that creates and promotes various forms of entertainment media including video games. 2K Games and 2K Sports are publishers of video games, and Visual Concepts, Yuke’s, and Yukes LA are developers of video games.

She asserted that the videogames constituted willful copyright infringement because the games included clear, detailed and unauthorized reproductions of the tattoos she inked on Orton. The defendants moved to dismiss.

Jurisdiction. WWE and Yukes moved to dismiss for lack of personal jurisdiction. Yuke’s is a Japanese corporation and Yukes LA is a California corporation with its primary place of business in California. The Yuke’s companies are not incorporated or headquartered in Illinois, nor do they have knowledge of sales or distribution of WWE 2K video games to Illinois. WWE is a Delaware corporation with its principle place of business in Connecticut. WWE operates a website accessible throughout the United States that offers various WWE branded products for sale, including the WWE 2K video games.

The artist asserted that personal jurisdiction as to WWE is proper in Illinois primarily because she contacted WWE in 2009 about its infringing activities. She argued her communications with WWE coupled with WWE holding live promotional events and selling the video games in question to residents in Illinois established that WWE expressly directed its activities toward Illinois. The court agreed. WWE conceded that it has promoted live shows in the state, including 38 live promotional events featuring Randy Orton in the past 3 years. Additionally, it directs television programming to Illinois and its website is accessible in the state. As such, the court found that WWE expressly aimed its activities at Illinois. Accordingly, the court denied WWE’s motion to dismiss for lack of jurisdiction.

As to the Yuke’s companies, however, the court found that the plaintiff’s allegations were insufficient to establish that the companies had minimum contacts with Illinois, that they purposefully availed themselves of the benefits and protections of Illinois law, or that there was a real relationship between Illinois and the Yuke’s companies. Nor did she establish that Yuke’s, a Japanese corporation, had the necessary continuous and systematic general business contacts such that it was essentially "at home" in the United States for purposes of jurisdiction. Accordingly, since the court lacked personal jurisdiction over the Yuke’s companies, it granted their motion to dismiss.

Copyright infringement. The court noted that five of the tattoos were registered on March 13, 2018, prior to the filing of this suit. The U.S. Copyright Office Register rejected the application for the Bible verse tattoo on the basis that it lacked the authorship necessary to support a copyright claim. Accordingly, because the claimant did not have proper registration for the Bible verse tattoo, the motion to dismiss was granted as to the Bible tattoo and denied as to the remaining five tattoos.

The video game developers maintained that the complaint was vague because it failed to sufficiently state the works that were allegedly infringed, failed to state the allegedly infringing conduct of each defendant, and failed to plead the necessary elements for direct, contributory and vicarious infringement.

The court disagreed, pointing out that the tattoo artist holds certificates of registration for five tattoos and alleges her tattoos are prominently displayed on Orton in the video games. She described the original tattoos allegedly infringed upon. She also alleged that each defendant had either a developmental, marketing or promotional role in the bringing the infringing video games to market. Dismissal for failure to state a claim is proper only if the plaintiff can prove no set of facts in support of her claims which would entitle her to relief, the court stated. Here, there were sufficient factual allegations in the complaint to allow her claims to proceed against the defendants as to the remaining five registered tattoos, the court held.

This case is No. 3:18-cv-00966-SMY.

Attorneys: R. Seth Crompton (Holland, Groves, Schneller & Stolze LLC) for Catherine Alexander. Dale M. Cendali (Kirkland & Ellis LLP) and Michael J. Nester (Donovan Rose Nester, PC) for Take-Two Interactive Software, Inc., 2K Games, Inc. and 2K Sports Inc. Jerry S. McDevitt (K & L Gates LLP) for World Wrestling Entertainment, Inc.

Companies: Take-Two Interactive Software, Inc.; 2K Games, Inc.; 2K Sports Inc.; World Wrestling Entertainment, Inc.

MainStory: TopStory Copyright GCNNews IllinoisNews

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