Arthur R. Lehman, L.L.C.

When is artwork infringed upon in copyright?

While some items have clear copyrights, artwork can be a trickier subject area to identify and prove copyright infringement. The question of infringement has recently appeared with a prominent lawsuit between WWE wrestler Randy Orton’s tattoo artist Catherine Alexander and the WWE and video game publisher 2K Games.

Alexander claims that the WWE and 2K Games breached copyright laws using her distinctive tattoo designs in commercials and video games respectively. Orton is prominently featured in the commercials and video games along with detailed replications of his tattoos. But is this enough to count as copyright infringement?

Proving copyright infringement

To win the lawsuit, the court will have to agree that the WWE and 2K Games used her designs and that their rendition of her works were substantially similar to her designs.

The courts adhere to a substantial similarity test to evaluate whether the works are so alike that the one violates the copyright of the other. In this case, they will evaluate whether the average person would be able to recognize the tattoos from the videogame as Alexander’s artistic work.

How could this issue be avoided?

A thorough contract would be necessary to avoid copyright infringements like the case between Alexander and the WWE and K2 Games. An artist or designer should create a contract that either details appropriate use of their designs, or forbids use of their designs in any capacity.

On the other side of the issue, individuals or companies who commission a design of some kind should have their designer sign a waiver to release their right to the copyright altogether if they wish to use it in the future.

A skilled intellectual property lawyer can thoroughly evaluate the proposed contract before signing to ensure that there are no causes for concern. It should be very clear which party has rights to the design and when they can or cannot use it. Extra attention to detail upfront can save you from costly litigation later on.

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