Decisions in Brief
| Author | John C. Gatz |
| Pages | 56-60 |
Published in Landslide® magazine, Volume 13, Number 3, a publication of the ABA Section of Intellectual Property Law (ABA-IPL), ©2020 by the American Bar Association. Reproduced with permission. All rights reserved.
This information or any portion thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.
COPYRIGHTS By John C. Gatz
Decisions in Brief
PATENTS
Display of Tattoos on Video Game Character
Constitutes Copying
Alexander v. Take-Two Interactive Software, Inc., No. 3:18-
cv-00966, 2020 WL 5752158, 2020 U.S.P.Q.2d 11123 (S.D.
Ill. Sept. 26, 2020). Plaintiff Catherine Alexander led a
complaint against defendants Take-Two Interactive Software
Inc., 2K Games Inc., 2K Sports Inc., and Visual Concepts
Entertainment (Take-Two defendants) and World Wrestling
Entertainment Inc. (WWE) for copyright infringement. The
plaintiff is a former tattoo artist, who inked certain tattoos on
WWE wrestler Randy Orton. The plaintiff alleged that the
defendants’ depiction of Orton, including his tattoos, in the
WWE 2K video game infringes her copyrights. The plaintiff
led a motion for partial summary judgment, and the Take-
Two defendants also led a motion for summary judgment.
In the plaintiff’s motion for partial summary judgment, she
argued there was no dispute of material facts as to the issue of
copying because the defendants admitted to copying her tat-
too artworks without permission. Because it was undisputed
that the plaintiff holds valid copyrights for the tattoos and
that the defendants copied her copyrighted works, the district
court granted the plaintiff’s motion for partial summary judg-
ment as to the copying element.
As to the Take-Two defendants’ motion for summary judg-
ment, the district court found that factual questions remained
with respect to the Take-Two defendants’ afrmative defenses
of implied license, fair use, and de minimis use. The Take-
Two defendants argued that the plaintiff implicitly licensed
Orton to display the tattoos as part of his likeness (which
was licensed to WWE for further license), since the plaintiff
did not tell Orton that further use would constitute infringe-
ment. The district court disagreed, nding that it was unclear
whether the plaintiff discussed permissible use of her tattoos
with Orton. The Take-Two defendants also argued that use of
the tattoos was fair use because they are small and difcult
to identify in the game. Likewise, the Take-Two defen-
dants asserted that the tattoos on Orton in the game are too
minor to give rise to a legal claim because they are small and
constitute a nominal part of the game as a whole. The district
court was unconvinced by these arguments and denied the
Take-Two defendants’ motion.
Proof of Access or Striking Similarity Required to
Establish Factual Copying
Batiste v. Lewis, No. 19-30400, 2020 WL 5640589, 2020
U.S.P.Q.2d 11102 (5th Cir. Sept. 22, 2020). Jazz musi-
cian Paul Batiste sued internationally famous hip-hop duo
Macklemore & Ryan Lewis for copyright infringement,
claiming that the duo copied 11 of his songs, including:
“Thrift Shop,” “Can’t Hold Us,” “Same Love,” “Neon Cathe-
dral,” and “Need to Know.” Batiste alleged that the group
digitally sampled his songs without permission. Finding no
evidence of copying, the district court granted summary judg-
ment for the defendants. Batiste appealed. The Fifth Circuit
Court of Appeals afrmed the decision.
The district court held that Batiste failed to show that the
defendants had access to his music or that their songs were
strikingly similar to his. Batiste disagreed and also argued
that he did not need to show that the defendants’ songs
sounded like his because any unauthorized sampling of a
copyrighted sound recording is infringement. With respect to
access, the district court found that no reasonable jury could
nd more than a bare possibility that the defendants had an
opportunity to hear and copy Batiste’s songs. The district
court also concluded that Batiste’s argument that infringe-
ment was established by the defendants’ sampling of his
songs failed. Batiste neither got an admission from the defen-
dants that they sampled his recordings nor presented evidence
to create a genuine dispute on that issue.
Because Batiste did not produce evidence that the defen-
dants had access to his music or that there were striking
similarities between his songs and the defendants’ songs, the
Fifth Circuit found that Batiste did not prove factual copying.
Without proof that the defendants copied his works, Batiste’s
copyright claims failed, and the district court correctly
granted summary judgment for the defendants.
APA/Substantial Evidence
FanDuel, Inc. v. Interactive Games LLC, 966 F.3d 1334, 2020
U.S.P.Q.2d 10850 (Fed. Cir. 2020). The Federal Circuit Court
of Appeals afrmed the Patent Trial and Appeal Board’s
(PTAB’s) nding that FanDuel failed to prove the obvious-
ness of a claim in a patent directed to a wireless gaming
service, because the PTAB complied with the Administrative
Procedure Act (APA) and its factual ndings were supported
by substantial evidence. The Federal Circuit rst rejected
FanDuel’s APA violation argument, explaining that the PTAB
can nd factual deciencies in its nal written decision even
if such deciencies were not raised by the patent owner
because the burden of proving invalidity remains on the peti-
tioner throughout the proceeding. The Federal Circuit also
rejected FanDuel’s argument that the PTAB’s fact-ndings
were not supported by substantial evidence, explaining that
the PTAB is not required to defer to a petitioner’s unrebutted
expert opinion because it is the PTAB’s duty to independently
assess the strength of a petitioner’s argument and evidence.
Attorney Fees
FastShip, LLC v. United States, 968 F.3d 1335, 2020
U.S.P.Q.2d 10872 (Fed. Cir. 2020). Following a nding of
infringement, the Court of Federal Claims determined that
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