Again WWE and Take-Two Interactive Move to Dismiss Copyright Infringement Lawsuit

On October 23, 2018, World Wrestling Entertainment Inc. (WWE) and Take-Two Interactive Software Inc. (Take-Two) again moved to dismiss a suit brought by Catherine Alexander, a tattoo artist for professional WWE wrestler Randy Orton. According to the WWE and Take-Two, Alexander’s “amended complaint does nothing to remedy the grave deficiencies of her prior pleading.”

As we have previously reported, in April, 2018, Alexander sued the WWE and Take-Two. Alexander claimed that several video games in the WWE 2K series illegally copied Alexander’s copyrighted tattoos in the Orton game avatar. Between 2003 and 2008, Alexander created several tattoos for Orton, including tattoos on his upper back, forearms, upper arms, and sleeve tattoos. In March 2018, Alexander submitted applications to register copyrights on each of the tattoos. In addition, back in 2009, WWE allegedly offered Alexander $450,000 for the rights to use and reproduce Orton’s tattoos; however, Alexander declined.

In July 2009, the WWE and Take-Two tried to dismiss Alexander’s lawsuit. They argued that Alexander’s “claim is that she effectively [owns] a monopoly over the depiction of Randy Orton as he appears in real life,” which is “legally and practically implausible.” Additionally, the WWE and Take-Two claimed that the Illinois federal court did not have personal jurisdiction over the defendants and the defendants were not subject to the general or specific jurisdiction in Illinois federal court. These arguments prompted Alexander to file an amended complaint in early October 2018; however, according to the WWE and Take-Two, Alexander’s “amended complaint does nothing to remedy the grave deficiencies of her prior pleading.”

Now the WWE and Take-Two again moved to dismiss Alexander’s lawsuit. This time WWE and Take-Two argued that while Alexander’s “ultimate claim is wholly without merit under well-settled principles of copyright law, several critical defects warrant dismissal.” First, the WWE and Take-Two argued that Alexander’s copyright claim fails because she does not hold certificates of registration from the U.S. Copyright Office for any of the works at issue.

Second, WWE and Take-Two argued that Alexander’s “vague, conclusory allegations” fall short because the amended complaint fails to put the WWE and Take-Two on notice of the alleged misconduct. Specifically, the amended complaint fails to sufficiently state the works allegedly infringed, merely referring to the tattoos with vague, non-descriptive titles like “Tribal Design” or “Rose.” Further, the amended complaint groups together all seven defendants, including WWE and Take-Two, without stating what allegedly infringing conduct each has committed. The amended complaint purports to bring claims for direct, contributory, and vicarious infringement, but fails to state which defendants are charged with each type of infringement. Lastly, the WWE and Take-Two argued that Alexander still failed to allege facts to establish jurisdiction over several defendants.

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