WWE and 2K are officially seeking a new trial in the long ongoing Randy Orton tattoo case as WWE 2K23 approaches.
With significant industry wide precedent on the line, WWE and 2K have refused to accept the previous verdict and filed a new motion for this case.
WWE and 2K file motion demanding new trial in Randy Orton tattoo case
Just one month after losing a jury trial, WWE and 2K have filed a new motion demanding that trial be thrown out and a new one granted.
As we covered previously, WWE has been fighting this case from tattoo artist Catherine Alexander for some time, and a previous verdict awarded her $3,750 in damages.
While the damages were relatively minimal considering how much money WWE and 2K make from the games, the real worry on their end appears to be the potential precedent.
If the verdict stands in the long-term, it could leave major titles like NBA 2K23 and anything featuring mainstream figures with visible tattoos open to future lawsuits.
Likely with that reality in mind, WWE and 2K have now pushed back against the previous verdict and filed a motion arguing that the "ultimate question of fair use" in this scenario is "for the Court to decide, not the jury."
The arguments from WWE, 2K, and other defendants also argue that Alexander:
"...closed her case-in-chief without presenting legally sufficient evidence to prove actual damages or disgorgement of profits, on which she bore the burden of proof. With regard to actual damages, Plaintiff failed to articulate any measure of actual damages that was not based on undue speculation.
Plaintiff specifically did not offer any evidence of a decrease in value of the copyrighted works, the profits she would have made without the infringement, or what a willing buyer would have paid to obtain a license from Plaintiff for Defendants’ use in WWE 2K. In fact, Plaintiff admitted she could not identify any business or clients that she lost due to Mr. Orton’s tattoos. As a result, Plaintiff’s counsel invited the jury in his closing to speculate about what actual damages Plaintiff might have suffered. That is not evidence, and no reasonable jury could have awarded any actual damages in this case, because there was no evidence for it to do so. With regard to disgorgement, as the jury recognized, Plaintiff failed to present any evidence of a causal nexus between the alleged infringement and her claim form Defendants’ profits.
There is no evidence in the record that anyone bought WWE 2K for the Tattoos, and in fact, all of the evidence in the record indicates the opposite. Although the jury’s verdict shows that it recognized no such causal nexus existed, the lack of any proof whatsoever further warrants judgment as a matter of law in favor of Defendants. Moreover, although Defendants do not believe Plaintiff is entitled to a new trial, if Plaintiff requests one and the Court grants it, Defendants respectfully request that the new trial include all of Defendants’ defenses, including (1) fair use; (2) waiver; (3) estoppel; and (4) license. Not only is the fair use verdict against the weight of the evidence, but to the extent Plaintiff is permitted to retry her damages case, Defendants should be able to submit additional evidence on these defenses."
The motion by WWE and 2K was filed on October 31, 2022, but it's not currently known when things will proceed or a ruling on the motion will be delivered.
WWE 2K23 and other future games could be impacted
While this trial has been going on for years, the concern from 2K is likely much larger than one verdict or game.
In reality, the whole industry is surely following this trial closely as the finality of it could have far-reaching impacts on games moving forward.
If the ruling stands, it could complicate things for some developers and incentivize them to omit or alter tattoos in game to avoid risk of another tattoo artist seeking damages.
It's understandable for artists to seek recognition and payment for the use of their work, but in practice companies may not want to deal with the hassle of seeking independent agreements with various artists.
The only large-scale solution might be unionization in some form with a tattoo artist union making agreements with game developers on behalf of all their members, but the likelihood of that infrastructure being in place any time in the near future is slim.
At this point, we will have to wait and see where the legal battle goes next as WWE 2K23 continues to ramp up for a release in early 2023.