Copyright Smackdown: Navigating Intellectual Property Rights in Video Game Depictions of Athletes’ Tattoos

By: Karissa Smith*                                                                              Posted: 3/27/2025

Depicting an athlete’s tattoos in a video game is fair use of the tattoo artist’s work, sometimes.[1]  As two recent copyright infringement cases demonstrate, fair use determinations in these cases turn on whether the given tattoo was reproduced in a transformative way to accurately depict the athlete’s image and likeness, rather than to capitalize off of the expressive value of the tattoo itself.[2]  In both cases, the tattoos of professional athletes were reproduced as elements of the athletes’ avatars in their respective series of “2k” video games.[3]  But despite these factual similarities, these two cases came out differently on the issue of fair use with the Illinois district court finding no fair use and the New York district court finding fair use.[4]

Catherine Alexander v. Take-Two Interactive Software, Inc.[5]

Professional tattoo artist, Catherine Alexander, created and inked six tattoo designs on World Wrestling Entertainment (“WWE”) wrestler Randy Orton’s upper back and arms between 2002 and 2008.[6]  Orton had previously signed with the WWE in 2000 and licensed his image and likeness as part of his contract.[7]  In 2009, Alexander reached out to the WWE’s legal team to discuss the WWE’s reproduction of Orton’s tattoos on fake tattoo sleeves.[8]  After negotiations to license rights to reproduce Orton’s tattoos failed, Alexander told the WWE that it did not have permission to use Orton’s tattoo designs in any capacity.[9]  Eventually, the WWE sublicensed Orton’s name and likeness to Take-Two Interactive (“Take-Two”), the creator of the WWE 2k video games.[10]  Take-Two then reproduced Orton’s image and likeness, including his tattoos, to create Orton’s avatar in the “WWE 2k16,” “WWE 2k17,” and “WWE 2k18” video games.[11] 

After the WWE 2k video games were released, Alexander filed a complaint with a U.S. District Court located in the Southern District of Illinois, claiming that Take-Two’s reproduction of Orton’s tattoos infringed on her copyright in the tattoos, citing Section 501 of the Copyright Act.[12]  Ruling on Alexander’s and Take-Two’s motions for summary judgment, the court found that Alexander sufficiently demonstrated that Take-Two actually copied her designs.[13]  Thus, the remaining question for trial was whether Take-Two’s reproduction of Alexander’s tattoo designs was unlawful or if it had sufficiently pled an affirmative defense of fair use.[14]  After a five-day trial, a jury found in favor of Alexander, rejected Take-Two’s fair use defense, and awarded Alexander $3,750 in damages.[15]

Solid Oak Sketches v. 2K Games, Inc.[16]

In a very similar case two years earlier, Solid Oak Sketches (“Solid Oak”) brought a copyright infringement claim against Take-Two when Take-Two depicted the tattoos of National Basketball Association (“NBA”) players LeBron James, Eric Bledsoe, and Kenyon Martin (collectively the “players”) in the NBA 2k video games.[17]  Like Randy Orton, these players licensed their images and likenesses to the NBA, which then licensed their images and likenesses to Take-Two for the creation of the NBA 2k video games.[18]  The depictions of the players’ tattoos at issue appeared in NBA 2k14, NBA 2k15, and NBA 2k16.[19]

There were five tattoos that were depicted on the avatars of James, Bledsoe, and Martin that were at issue in this case.[20]  Take-Two moved for summary judgment seeking the dismissal of Solid Oak’s copyright infringement claim and a declaratory judgment finding in favor of Take-Two on its fair use affirmative defense.[21]  Granting Take-Two’s motion, the United States District Court for the Southern District of New York noted that the tattoos designed and inked by Solid Oak made up a “miniscule” part of the video games and were not clearly visible on the players’ avatars.[22]  Ultimately, the court found that Take-Two’s depictions of the players’ tattoos in the NBA 2k video games constituted fair use and thus there was no infringement.[23]

Fair Use in Copyright Law

To demonstrate copyright infringement, a plaintiff must show that the defendant actually copied their copyrighted work, and that the defendant’s copying was an “improper appropriation” of the plaintiff’s work.[24]  Even if a defendant actually copied a plaintiff’s work, the copying may not be improper or unlawful.[25]  For example, a defendant may successfully argue that their copying was fair use of the plaintiff’s work.[26]

The Copyright Act of 1976 provide four factors that must be considered in determining fair use: (1) the purpose and character of the defendant’s use of the plaintiff’s work, (2) the nature of the copyrighted work, (3) the amount and substantiality of the plaintiff’s work that the defendant used, and (4) the effect the defendant’s use has on the market of or the value for the plaintiff’s work.[27]  The question of whether the use of a copyrighted work constitutes fair use is a mixed question of law and fact.[28]  A key determination in evaluating the four fair use factors is whether the defendant’s use of the plaintiff’s work was transformative.[29]  Indeed, it is more likely that a court will find fair use in instances where the defendant’s work is highly transformative of the plaintiff’s work.[30]

Applying Fair Use in Alexander and Solid Oak

The key factor that seemed to dictate the difference in outcomes of Alexander’s and Solid Oak’s cases was transformativeness.[31]  Starting with the first fair use factor, the Alexander court found that Take-Two’s use of Orton’s tattoos was not transformative because Take-Two did not change the appearance of the tattoos in the WWE 2k video games.[32]  The court further found that Take-Two’s depictions of Orton’s tattoos were not only to accurately depict Orton because of the “Create-A-Superstar” feature of the WWE 2k video games.[33]  This feature allowed players to create custom wrestler avatars and apply Orton’s tattoos to those custom avatars.[34]  The “Create-A-Superstar” feature proved to be a problem because the Alexander court further found that the third fair use factor—the amount and substantiality of the plaintiff’s work that the defendant used—weighed in Alexander’s favor.[35]  The court again noted that avatar customization feature demonstrated that Take-Two’s use of Orton’s tattoos was not to accurately depict him in the game, and that there was no sufficient purpose for copying all five tattoos in their entirety.[36]

The Alexander court, however, found that the fourth factor weighed in favor of fair use because Alexander testified that she never licensed her tattoos for use in video games.[37]  The court was also convinced by expert testimony that there was no market for licensing tattoos in videogames.[38]  Because three out of the four fair use factors weighed in favor of Alexander, the court ultimately found that Take-Two’s reproduction of Orton’s tattoos was not fair use.[39] 

In contrast with the Alexander court, the court in Solid Oak Sketches found factor one weighed in favor of Take-Two because the transformative purpose of reproducing the players’ tattoos was to depict those players accurately in the NBA 2k video games.[40]  The court also found that the size of the tattoos were “significantly reduced” in the NBA 2k video games, rendering them less recognizable to game players and thus further showing that Take-Two’s reproduction was transformative.[41]  Further, the court found that the expressive value of the tattoos was reduced because they ultimately were visually lost among other visual elements of the NBA 2k video games.[42]

The Solid Oak Sketches court’s finding of transformativeness carried into its analysis of the third fair use factor.[43]  The court found that although Take-Two reproduced all five tattoos in their entirety, doing so was necessary to accurately depict the players in the NBA 2k video games.[44]  Additionally, as the court noted in its factor one analysis, the fact that the tattoos were significantly smaller and that they were, at times, unrecognizable, greatly diminished their expressive value.[45]  In its analysis of the fourth fair use factor, the Solid Oak Sketches court again pointed to the transformative nature of the reproduction of the tattoos and found that that they were thus not substitutes for the original tattoos.[46]  Additionally, like the court in Alexander, the Solid Oak Sketches court found that there was no evidence of a market for licensing tattoos for use in video games and that such a market was unlikely to develop.[47]

Although Alexander and Solid Oak Sketches appeared to have the same facts on their face, the courts came to opposite conclusions on the issue of fair use.[48]  It was the court’s finding of transformativeness, or lack thereof in the Alexander case, that affected the outcome.[49]  Because the WWE 2k video games allowed users to customize an avatar by using Orton’s tattoos, the Alexander court found that Take-Two’s use of the tattoos in the game was not transformative.[50]  In contrast, the facts in Solid Oak Sketches did not show that the NBA 2k video games had the same feature, which likely helped the court to find Take-Two’s use of the NBA players’ tattoos as transformative.[51]

Can Video Games Depict Athletes’ Tattoos Without Infringing on Copyrights?

It is clear that the bad fact for Take-Two in the Alexander case was the “Create-A-Superstar” feature in the WWE 2k video games.[52]  This may be why the presiding judge did not bother to even reference Solid Oak Sketches in her order directing summary judgment in favor of Alexander.[53] However, the tattoos in the aforementioned cases—and in all other instances—are permanently affixed to the bodies of the athletes.[54]  It seems that such permanent affixation should signify that athletes may freely license their images and likenesses without consulting their tattoo artists.[55]

This begs the question of whether fair use is the best way to analyze instances of copying athletes’ tattoos for use in video games.[56]  As both the Alexander and the Solid Oak Sketches courts found, there is no market for licensing athletes’ tattoos for use in video games, nor is there an indication that such a market may arise.[57]  Thus, even if courts are more likely to find that the fourth fair use factor weighs in favor of defendant video game developers, courts may still find that the other three factors weigh in favor of plaintiff tattoo artists.[58] 

Other affirmative defenses, such as implied license, may be better frameworks to evaluate infringement claims.[59]  Finding no infringement under the implied license affirmative defense may also promote the licensing of athletes’ images and likenesses.[60]  Ultimately, whether such an affirmative defense makes it to a jury lies within the discretion of the court.[61]  In the meantime, other video game developers may be wise to learn from Take-Two’s lesson in Alexander, reproduce tattoos on player avatars only, and not allow game players to create custom avatars with the tattoos of real-life athletes.[62]

* Staff Writer, Jeffrey S. Moorad Sports Law Journal, J.D. Candidate, May 2026, Villanova

[1] See generally Daniel F. Gourash, Does Inclusion of Athlete Tattoos in Video Games Constitute Copyright Infringement?, Am. Bar Ass’n (2024), https://www.americanbar.org/groups/judicial/publications/judges_journal/2024/fall/does-inclusion-athlete-tattoos-video-games-constitute-copyright-infringement/ (discussing three different cases where tattoo artists claimed copyright infringement when video game creators reproduced tattoos of athletes in wrestling and basketball video games).

[2] See Emilie Smith, Game on-Copyrighted Tattoos in Video Games as Fair Use, 106 Marq. L. Rev. 1015, 1030 (2023) (noting that Solid Oak Sketches, LLC v. 2K Games, Inc. court acknowledged that first fair use factor hinged on “whether the [defendant’s] use could be characterized as transformative”).

[3] Aaron Moss, Tattoo Artist’s Trial Win is a Loss for Bodily Autonomy, Free Speech, Copyright Lately (Oct. 2, 2022), https://copyrightlately.com/tattoo-artist-trial-victory-copyright-lawsuit/ (explaining that professional wrestler Randy Orton’s tattoos were depicted on his avatar in “WWE 2k” video game series); see also Solid Oak Sketches, LLC v. 2K Games, Inc., 449 F.Supp.3d 333, 339 (S.D.N.Y. 2020) (explaining that tattoos of NBA players Eric Bledsoe, LeBron James, and Kenyon Martin were depicted on players’ respective avatars in series of “NBA 2k” video games).

[4] See Moss, supra note 3 (noting New York district court found for defendants on affirmative defenses of implied license, de minimis use, and fair use while Illinois district court judge rejected all three aforementioned affirmative defenses).

[5] Alexander v. Take-Two Interactive Software, Inc., No. 18-cv-966-SMY, 2024 WL 4286349 (S.D. Ill. Sept. 25, 2024).

[6] See Compl. at 5, Alexander v. Take-Two Interactive Software, Inc., No. 3:18-cv-0966 11456572 (S.D. Ill. Apr. 17, 2018) (asserting Alexander’s tattoo designs were original and expressive “reduced to a tangible medium”).

[7] See Doric Sam, Randy Orton Confirms 5-Year WWE Contract Extension Before Bash in Berlin After Rumors, Bleacher Rep. (Aug. 12, 2024), https://bleacherreport.com/articles/10131684-randy-orton-confirms-5-year-wwe-contract-extension-before-bash-in-berlin-after-rumors  (announcing Orton’s contract extension with WWE); see also Aaron Moss, Tattoo Feud: Artist’s Copyright Case (Inexplicably) Sent to Trial, Copyright Lately (Oct. 7, 2020), https://copyrightlately.com/tattoo-artist-copyright-case-wwe-2k/ (noting Orton’s subsequent success in his WWE career).

[8] See First Am. Compl. at 6, Alexander v. Take-Two Interactive Software, Inc., No. 3:18-cv-0966 (S.D. Ill. Oct. 2, 2018) (alleging WWE reproduced Orton’s tattoos on “various items for sale”); see also Order on Pl.’s Partial Mot. for Summ. J. at 3, Alexander v. Take-Two Interactive Software, Inc., No. 3:18-cv-0966 (S.D. Ill. Sept. 26, 2020) (stating that WWE representative laughed at Alexander and told Alexander “they could do what they wanted with Orton’s images because he was their wrestler”).

[9] See Order on Pl.’s Partial Mot. for Summ. J. at 3, Alexander v. Take-Two Interactive Software, Inc., No. 3:18-cv-0966 (S.D. Ill. Sept. 26, 2020) (stating that WWE offered Alexander $450 for reproduction rights of Orton’s tattoos).

[10] See id. at 2 (noting Take-Two Interactive required WWE’s approval of WWE 2k video games before Take-Two Interactive could release and market them); see also Moss, supra note 7 (noting WWE sublicensed name and likeness of other WWE wrestlers).

[11] See Order on Pl.’s Partial Mot. for Summ. J. at 2, Alexander v. Take-Two Interactive Software, Inc., No. 3:18-cv-0966 (S.D. Ill. Sept. 26, 2020) (explaining that digital reproduction process of Orton’s likeness is known as “photo reference” in video game industry); see also Moss, supra note 7 (noting that Alexander never licensed use of her tattoo designs for media use).

[12] See First Am. Compl. at 8, Alexander v. Take-Two Interactive Software, Inc., No. 3:18-cv-0966 (S.D. Ill. Oct. 2, 2018) (alleging Take-Two “knew or should have known” that Alexander was author and owner of Orton’s tattoos); see also 17 U.S.C.A. § 501(b) (West 2024) (“The legal or beneficial owner of an exclusive right under a copyright is entitled . . . to institute an action for any infringement of that particular right committed while he or she is the owner of it.”).

[13] See Order on Pl.’s Partial Mot. for Summ. J. at 5, Alexander v. Take-Two Interactive Software, Inc., No. 3:18-cv-0966 (S.D. Ill. Sept. 26, 2020) (noting Take-Two’s admission to copying Alexander’s copyrighted tattoos satisfied Seventh Circuit requirement that plaintiff show that defendant used her copyrighted work).

[14] See id. at 6 (stating that Take-Two was liable for copyright infringement unless it could establish affirmative defense to admitted copying).

[15] See Moss, supra note 3 (noting that jury determined Take-Two’s profits from WWE 2k video games was not attributable to its use of Alexander’s tattoo designs).

[16] Solid Oak Sketches, LLC v. 2K Games, Inc., 449 F.Supp.3d 333 (S.D.N.Y. 2020).

[17] See id. at 339 (stating depictions of NBA players’ tattoos appeared in NBA 2k14, 2k15, and 2k16); see also Moss, supra note 3 (noting that judge in Alexander rejected fair use affirmative defense without mentioning Solid Oak Sketches, LLC decision).

[18] See Solid Oak Sketches, LLC, 449 F.Supp.3d at 340 (noting players also gave Take-Two permission to use their images and likenesses).

[19] See id. at 339 (explaining that Take-Two is developer of “NBA 2k” video games that included lifelike depictions of NBA players).

[20] See id. at 339–40 (noting Solid Oak held “an exclusive license” in all five tattoos).

[21] See id. at 339 (stating Take-Two also asserted affirmative defense of de minimis use).

[22] See id. at 342 (noting tattoos were not clearly visible in NBA 2k video games, especially during gameplay).

[23] See id. at 350 (finding all four fair use factors weighed in favor of Take-Two).

[24] See Arnstein v. Porter, 154 F.2d 464, 468 (2d Cir. 1946) (stating that issue of “illicit copying” only arises if plaintiff shows that defendant actually copied their work).

[25] See id. at 473 (explaining that in case before the court, unlawful copying existed where “defendant took from plaintiff’s work so much of what is pleasing to the ears of lay listeners, who comprise the audience for whom such popular music is composed”).

[26] See 17 U.S.C.A. § 107 (West 2024) (“[T]he fair use of a copyrighted work . . . is not an infringement of copyright”).

[27] See id. § 107(1)–(4) (providing that unpublished works do not bar finding fair use if weighing of four factors leans in favor of fair use).

[28] See Harper & Row Publishers, Inc. v. Nation Enters., 471 U.S. 539, 560 (1985) (noting that fair use is an “equitable rule of reason,” and such inquiry is highly fact-dependent); see also Solid Oak Sketches, LLC v. 2K Games, Inc., 449 F.Supp.3d 333, 347 (S.D.N.Y. 2020) (citation omitted) (noting that fair use question is “an open-ended and context-sensitive inquiry”).

[29] See Google LLC v. Oracle Am., Inc., 593 U.S. 1, 29 (2021) (defining “transformative” as “a copying use that adds something new and important”).

[30] See Campbell v. Acuff-Music, Inc., 510 U.S. 569, 579 (1994) (stating that “the more transformative the new work, the less will be the significance of other factors, like commercialism, that may weigh against a finding of fair use”).

[31] See Alexander v. Take-Two Interactive Software, Inc., No. 18-cv-966-SMY, 2024 WL 4286349, at *2–3 (S.D. Ill. Sept. 25, 2024) (finding fair use factors one and three did not weigh in favor of fair use because of lack of transformative nature of Take-Two’s reproduction of Orton’s tattoos).

[32] See id. at *2 (finding Take-Two depicted Orton’s tattoo for their “expressive value”).

[33] See id. (“[T]his usage had nothing to do with reproducing the tattoos in the video game to depict Orton most accurately.”).

[34] See id. (noting that jury saw several custom wrestler avatars that featured copyrighted tattoos and none of them looked like Orton).

[35] See id. at *3 (noting key question was how extensively Take-Two copied Alexander’s tattoos and whether amount used was necessary for purpose of use).

[36] See id. (noting evidence at trial showed that Take-Two “previously altered tattoos of wrestlers to avoid infringing on others’ intellectual property”).

[37] See id. at *2 (explaining that market analysis considers whether defendant’s allegedly infringing work would cause substantial negative impact on market for plaintiff’s original work).

[38] See id. (noting also that market for licensing tattoos in videogames was unlikely to be developed).

[39] See id. (finding second fair use factor weighed in favor of Alexander because she held copyrights for all five of Orton’s tattoos).

[40] See Solid Oak Sketches, LLC v. 2K Games, Inc., 449 F.Supp.3d 333, 347 (S.D.N.Y. 2020) (noting that original purpose for creation of tattoos was “for the Players to express themselves through body art”).

[41] See id. (noting that tattoos appeared at 4.4% to 10.96% of actual size in NBA 2k video games).

[42] See id. at 348 (listing other avatars, referees, and other auditory elements of game that minimized tattoos’ expressive value).

[43] See id. at 349 (finding that none of five tattoos at issue were sufficiently expressive or creative for factor two to weigh in Solid Oak’s favor).

[44] See id. (“[I]t would have made little sense for [Take-Two] to copy just half or some smaller portions of the Tattoos.”).

[45] See id. (finding that third fair use factor weighed in Take-Two’s favor).

[46] See id. at 350 (“Transformative uses do not cause actionable economic harm because by definition, [such uses] do not serve as substitutes for the original work.”).

[47] See id. (noting that courts consider impact on existing or “likely to be developed” markets).

[48] See Alexander v. Take-Two Interactive Software, Inc., No. 18-cv-966-SMY, 2024 WL 4286349, at *3 (S.D. Ill. Sept. 25, 2024) (denying Take-Two’s motion for judgment on issue of fair use).  But see Solid Oak Sketches, LLC, 449 F.Supp.3d at 350 (ruling in favor of Take-Two’s counterclaim of fair use).

[49] See Alexander, 2024 WL 4286349, at *2 (noting Take-Two’s reproduction and use of Orton’s was commercial).

[50] See id. (noting use in “Create-A-Superstar” served separate purpose than to accurately depict Orton in WWE 2k video game).

[51] See Solid Oak Sketches, LLC, 449 F.Supp.3d at 342 (noting that tattoos depicted in NBA 2k video games were also not “discernible to the viewer” and “appear[ed] entirely out of focus”).

[52] See Alexander, 2024 WL 4286349, at *2 (emphasizing that Take-Two’s reproduction of Orton’s tattoos capitalized from their expressive value).

[53] See Moss, supra note 3 (proposing that Alexander court could have found fair use because original purpose of tattoos was “body art” whereas Take-Two’s purpose was to accurately depict Orton in WWE 2k video games).

[54] See Aaron Perzanowski, Tattoos & IP Norms, 98 Minn. L. Rev. 511, 532 (2013) (“[O]nce an image is created on the client's skin, tattooers uniformly acknowledge that control over that image, with some limited exceptions, shifts to the client.”).

[55] See id. at 536 (stating that tattoos become “an integral part” of clients after tattoo artists ink tattoos onto clients).

[56] See Moss, supra note 3 (proposing that Alexander court could have found no infringement under doctrines of implied license or de minimis use given facts presented).

[57] See Solid Oak Sketches, LLC v. 2K Games, Inc., 449 F.Supp.3d 333, 342 (S.D.N.Y. 2020) (noting that one of Take-Two’s expert witnesses concluded that consumers did not purchase NBA 2k video games because of James’s, Bledsoe’s, or Martin’s tattoos).

[58] See Gourash, supra note 1, at 15 (noting that lack of high value monetary damages awarded in these types of cases may alone disincentivize tattoo artists from bringing infringement claims).

[59] See Hayden v. 2K Games, Inc., No. 1:17-cv-02635, 2024 WL 4336945, at *2 (N.D. Ohio Aug. 22, 2024) (stating that jury found in favor of defendant’s implied license affirmative defense against plaintiff’s copyright claim).

[60] See id. at *8 (“An implied license in an unwritten license to use a work that is inferred from the circumstances and the conduct between the parties.”).

[61] See Moss, supra note 3 (noting that Alexander court removed affirmative defenses of de minimis use and implied license from jury’s consideration, leaving only fair use for jury to consider).

[62] See Smith, supra note 2, at 1025 (noting that UCLA law professor Neil Weistock Netanel “found that fair use determinations seem to increasingly revolve around transformative determinations”).