Is The Mike Tyson Tattoo On Ed Helms A Parody?

from the it-should-be dept

Wed, May 25th 2011 10:01am — Mike Masnick

We just wrote about how the judge in the Hangover 2/Mike Tyson tattoo copyright case had said that she wouldn't block the release of the movie, but would let the lawsuit proceed and indicated that the tattoo artist would likely prevail. I thought she just meant on proving the initial infringement, but other reports are saying that pretty clearly mocked Warner Bros.' defenses, including fair use on the tattoo:

Judge Perry briefly discussed the defense's claim of Fair Use, opining that there was no parody or transformative use, the entire tattoo in its original form was used (not in any parody form), the tattoo was not necessary to the basic plot of the movie, and that Warner Brothers used the tattoo substantially in its marketing of the movie.

This seems problematic for a bunch of reasons, but one part that troubles me (and we had some of this discussion in our comments) is whether or not the tattoo is parody. Frankly, I can't see how it's not parody. The reason that people claim that it's not transformative or parody is that it's an identical copy and thus isn't parodying the original tattoo. But that seems entirely wrong. While it's the tattoo itself that's copyrighted, you have to look at the context of the tattoo -- and in this case that includes the fact that it's on Mike Tyson's face. Putting it on Ed Helms' character (in many ways the antithesis of Tyson's character) is a clear parody of Tyson and his tattoo. I have trouble seeing how you could argue otherwise. If the point of the tattoo on Helms' face wasn't to parody the same tattoo on Tyson's face, then what's the joke here?

Along those lines, it seems like you could also make the case that it's clearly transformative, in that the original "expression" is the tattoo on Tyson's face. Moving that tattoo -- even if identical -- to Helms' face significantly transforms the tattoo into saying something entirely different. Ignoring the fact that the tattoo goes hand in hand with whose face its on doesn't make any sense at all, and suggests a misreading of the intentions of the fair use setup.

Finally, I have trouble believing the argument that this would somehow negatively impact "the market" for S. Victor Whitmill's "work." Just what is that "market"? How many people want the same tattoo that's on Mike Tyson's face? If anything, it seems like the movie might (if only so slightly) increase the market, rather than diminish it.

The whole case seems like a joke, and the judge's initial comments seem really out of line with the basics of copyright law.

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Filed Under: copyright, ed helms, fair use, mike tyson, tattoo, victor whitmill
Companies: warner bros.

90 Comments

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crade (profile), 25 May 2011 @ 9:24am

"If the point of the tattoo on Helms' face wasn't to parody the same tattoo on Tyson's face, then what's the joke here? "
There is no joke, they put the tattoo in the movie because it is so awesome that people will come from the four corners to see it and so they so they will sell tickets to their movie without having to spend all the effort to come up with a tattoo design on their own. The fact that it is also on Tyson's face and he happens to be in the film is just coincidental.
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Jay (profile), 25 May 2011 @ 10:17am

Re:
Could someone please remember that Mike Tyson was in the FIRST movie and how Helms' character was scared to death of Tyson and his knockout punch?

How much more evidence does the judge need to know that copyright law allows this parody? A signed copy of the second movie for her kids?
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TasMot (profile), 25 May 2011 @ 10:20am

Can parts of an art work be copyrighted also
I think part of the lawyers job will be to find out just how original that tattoo really is. There is just not that much to it except that it is on Tyson's face. Which is also part of my question, is just the tattoo copyrighted or is the fact that it was done on Tyson's face make Tyson part of the artwork?
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Chronno S. Trigger (profile), 25 May 2011 @ 10:21am

I was going to say that
I was thinking that when you posted the last article about this. The tattoo is a clear reference to Mike Tyson's who is prominent in this movie as well as the last. If it was someone else with a tattoo it would be a different artist suing over the use of their tattoo.

The tattoo is also clearly different. It looks like someone had a picture and a magic marker and a slight lack of skill. I've come to expect more from makeup artists in Hollywood.
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sheenyglass (profile), 25 May 2011 @ 10:32am

parody
I'm not sure that the use in the film parodies the tattoo itself. As this post discusses, for a parodic use to be a fair use it has to parody the copyrighted material itself - in essence a parody of a work is a form of transformative criticism.

One argument against fair use parody is that the humor comes from the absurdity of Ed Helms with a tough guy tattoo, so the movie is using the tattoo in the same way Mike Tyson uses it; as a signifier of toughness.

However, I can see it going the other way as well; it mocks the tattoo for being a shallow signifier of badass-itude.

Of course if it were to negatively impact the market, it could do so my making the tattoo undesirable. Presumably by successfully mocking the tattoo as a laughable substitute for masculinity. In which case it would necessarily have to be a sucessful parody.
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Jeff Wintemute, 25 May 2011 @ 10:32am

It's not a tatoo
I think that there is also a case to be made that what's on Helms' face is not a tattoo. It's a movie "prop" created for the sole purpose of parody.
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DannyB (profile), 25 May 2011 @ 10:34am

Another reason it might be parody
If it is clear that the character would not want the tattoo then that is the joke, and it is parody.
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crade (profile), 25 May 2011 @ 10:38am

Re: Re:
Also, it's a tattoo. Everyone seems to have forgotten that as well. And they didn't even copy it, they made another one that looks very much the same and just got the idea, (and none of the implementation) from Tyson's.
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Anonymous Coward, 25 May 2011 @ 10:42am

Re: I was going to say that
They look different to me too. The one on the right doesn't seem to have the "circle" look of the one on the left, among other things.
They are at different angles, though. Does anyone have larger photos which were both taken from the same angle? (I trust those two 97*102px pictures weren't the ones used in court as evidence!)
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HothMonster, 25 May 2011 @ 10:45am

Re: I was going to say that
"The tattoo is also clearly different. It looks like someone had a picture and a magic marker and a slight lack of skill. I've come to expect more from makeup artists in Hollywood."

Im sure they could do better but the tattoo you would get in Bangkok at 4 AM while blackout drunk probably isnt on caliber with the makeup artists doing their best. IOW, its shitty on purpose
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Anonymous Coward, 25 May 2011 @ 10:47am

Re: parody
"making the tattoo undesirable"

because prior to this movie there was such a huge demand for face tattoos.
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Chronno S. Trigger (profile), 25 May 2011 @ 10:51am

Re: Re: I was going to say that
Oh, that makes sense.
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Anonymous Coward, 25 May 2011 @ 11:15am

Having a "tribal" style face tattoo isn't copyrighted. The fact that it's similar, doesn't mean it is a copy because it's a whole style genre of tattoos (and a kind lame one at that). On top of that if Mike Tyson wasn't in the first film, was not being referenced to and used as a foil to a character, then everyone would have thought it was some stupidly random tough guy tattoo. But then without Tyson in the first film, Tyson's tattoo would not have made a joke that was instantly recognizable from viewers of the first film. Maybe they should have just had the joke be the guy put a tattoo of Mike Tyson's face on his butt. Would that be fair use? I mean you can't properly do Mike Tyson's face without the tattoo, then it's not Mike Tyson's face. How does the law feel about a case of paradox?
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Anonymous Coward, 25 May 2011 @ 11:20am

So its ok for me to us some one elses music/tattoo if its entirety sung by me/on my face. its just a parody of the original so no harm done...
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Anonymous Coward, 25 May 2011 @ 11:27am

It may be a joke, but that doesn't make it a parody (either in a standard definition or as the term "parody" is used in a legal sense).

In a copyright sense, a "parody" must contain some element of criticism of the original work. Maybe there's an argument to be made for that, but simply repeating the conclusion that it's a "clear" parody, without even identifying what a "parody" is in copyright terms, is not very convincing.
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Anonymous Coward, 25 May 2011 @ 11:34am

I don't see how the tattoo can be copy righted by the tattoo artist, wouldn't this fall under work for hire? Or did the guy walk up to Mike Tyson with the tattoo already created and say I want to put this on you? If tyson goes to this guy for a tattoo and says I want something like this as a tattoo and then the guy creates the tattoo Tyson agrees to, isn't that a work for hire? Seems like if there is a copyright Tyson would be the one to own it. or am I completely out in left field on this?
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Anonymous Coward, 25 May 2011 @ 11:36am

Re:
In short, no. It's probably not a work made for hire.

There must be a written agreement AND the work must fall into one of 9 statutorily identified categories to be a work made for hire (unless an employee does it for his employer).
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crade (profile), 25 May 2011 @ 11:50am

Re: Re: parody
Or like anyone who wanted one like that one wouldn't just get it done from their local tattoo shop anyway without even thinking that there could possibly be a "copyright" on the design.
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Vic, 25 May 2011 @ 11:55am

I believe that the tattoo is not the center of parody at all here. Mike Tyson? maybe, but not the tattoo. And it has not been changed substantially enough. Heck, if Obama's picture transfer from the photograph to poster needed to be discussed by lawyers for so long, then this tattoo is even more worth it. There was much more transformation in poster case, I believe.

My point of view - let Hollywood have it! If you promote strong copyright laws then have courage to face consequences of strong copyright laws!
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Killer_Tofu (profile), 25 May 2011 @ 11:59am

Re:
In every reality aside from copyright maximalists, really, there is no harm done so yes, it is okay. The only people who get offended are those who think they can own everything and feel they deserve money for nothing.
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Anonymous Coward, 25 May 2011 @ 12:02pm

I need to copywright a barbwire tatto. Then I can sue so many people. Because they're all similar to my copyright, and even if there are differences they are minor just like this case.
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crade (profile), 25 May 2011 @ 12:03pm

Re:
Unless you are trying to sing happy birthday in front of a group. Then it's killing the artist.
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Anonymous Coward, 25 May 2011 @ 12:03pm

They're the same and the artist is gonna win this. Incredibly stupid move on the part of the film's director.
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Keith, 25 May 2011 @ 12:04pm

parody
It's only parody if it's funny. The judge didn't laugh so it's not parody.
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Ron Rezendes (profile), 25 May 2011 @ 12:04pm

Re: Re: I was going to say that
Then wouldn't that obviously make it transformative since it's not even a copy, but just similar?

Of course I'm willing to bet that the actor only has a henna version of the not-even-close design, so in essence there is no copy of anything in reality - just a similar mark on someone else's face.

Please explain how someone might have a copyright on that?!
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Vic, 25 May 2011 @ 12:06pm

Re: parody
Of course if it were to negatively impact the market, it could do so my making the tattoo undesirable.

I can see the followup suit claiming potential losses of profit due to "making ... (this particular tattoo) ... undesirable"! With the complete studies on exactly "how much" the tattoo artist lost in the US and in other markets! Would not miss for all the tea in China!

8^)
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crade (profile), 25 May 2011 @ 12:10pm

Re:
If the tattoo is used to make a parody of Tyson wouldn't that just make the tattoo use satire instead of parody which is still covered under fair use in the US anyway?
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Anonymous Coward, 25 May 2011 @ 12:22pm

http://www.borg5of10.de/CHKOTAY1.jpg
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Marcus Carab (profile), 25 May 2011 @ 12:26pm

Re: Re:
Actually, while U.S. fair use specifically mentions parody, it says nothing about satire. Works have been specifically deemed infringing for being satires rather than parodies, because they use elements of the original to comment on something else instead of to comment on the original itself. See Dr. Seuss Enterprises v. Penguin Books.

Not ideal, but that's how it works right now.
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DCL, 25 May 2011 @ 12:27pm

Re: Re:
Did the tattoo artist get royalties from the first movie? The tattoo was in that one.
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el_segfaulto (profile), 25 May 2011 @ 12:30pm

Re:
Oh snap! Joss Whedon now owns my ass for my Dr. Horrible costume I wore for Halloween last year.
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Justin, 25 May 2011 @ 12:53pm

Re: Re: Re:
He can't sue on that one because of the first sale doctrine. Tyson, as the owner of the one and only authorized copy, can do with it what he wants. You could also argue that he has a implied nonexclusive license to do so.

The artist is claiming infringement only on the unauthorized copy that's on Ed Helm's face.
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Anonymous Coward, 25 May 2011 @ 1:10pm

Re: Re: Re: I was going to say that
Being something other than an identical copy does not automatically make something "transformative" as that term is used in copyright law.
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Anonymous Coward, 25 May 2011 @ 1:12pm

Re: Re:
Use of a copyright-protected work in a satire is not a defense to copyright infringement. I'm not sure where you're getting that info.
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CK (profile), 25 May 2011 @ 1:13pm

Re: Re: Re: I was going to say that
The same way any artist has any copyright to any piece of art they create.
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Bob, 25 May 2011 @ 1:18pm

Re: Re: I was going to say that
http://ll-media.tmz.com/2011/04/29/0429-mike-tyson-tattoo-bn.jpg
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DCL, 25 May 2011 @ 1:21pm

Re: Re: Re: Re:
So if the movie studio had skinned Mike Tyson's face and glued the skin patch to Ed Helm's for the 2nd movie that would be ok? Or is no such thing as "Second sale doctrine:?
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Justin Levine (profile), 25 May 2011 @ 1:36pm

The False Notion of Viable Parody Defenses
Alas - There are many shameful legal authorities to suggest that a parody defense would not fly in this case. It SHOULD be a viable defense in this case as a matter of sane legal policy, but copyright law has jettisoned sane legal policies some time ago.

A starting primmer worth reading here:

http://www.againstmonopoly.org/index.php?perm=593056000000003426

There are other authorities which MIGHT suggest otherwise, but just how the holdings are to be applied in other contexts have proven to be as clear as mud:

http://www.law.cornell.edu/supct/html/92-1292.ZO.html

As Justice Souter (most regretfully) said in the link above: "[P]arody, like any other use, has to work its way through the relevant factors, and be judged case by case, in light of the ends of the copyright law."

"Case by case" with no clear answers is the key here - at least until you've spent thousands of dollars in court to have a judge tell you the answer (and then risk a liability judgment on top of that if you lose).

Keith pretty much had it right in his comment above - If it happens to make the presiding judge laugh, then its "parody". If not, then its copyright infringement.

Its all just further proof of what a disgrace the current copyright regime is - allowing judges to fashion themselves as art and literary critics, rather than the arbitrators of objective legal principles.
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Anonymous Coward, 25 May 2011 @ 1:46pm

Re: Re: Re: Re:
First sale doctrine only applies to the transfer of ownership of the tattoo on Tyson's face itself and very limited sorts of public display in the wake of the transfer. However, it does not apply to the use of the tattoo in other works, such as a motion picture. See Ringgold v. Black Entertainment Television, Inc., 126 F.3d 70 (2d Cir. 1997). A lawfully-purchased poster of the plaintiff's artwork was displayed in the background of an episode of the television series "Rock" for a total of 27 seconds. The court found that this constituted an unlawful public display, the first sale doctrine not withstanding.
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Anonymous Coward, 25 May 2011 @ 1:48pm

Re: Re: Re: Re: Re:
No. Aside from the legalities of face-skinning, I think Justin is mistaken regarding the first-sale doctrine, because the movie itself (i.e., each DVD, film role, digital file, etc.) is a copy of the tattoo.

The first-sale doctrine doesn't apply to such copies, just the original physical copy that is sold.

So, skinning and gluing is fine, but once you film that skinned, glued tattoo, you're making a copy and you're outside the realm of the first sale doctrine.

However, his argument about an implied license is more plausible, though I think still not a winner.
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Anonymous Coward, 25 May 2011 @ 1:48pm

Re: Re: Re: Re: Re:
Apologies, the series was actually called "Roc." Anyway, point being the first sale doctrine does not necessarily exhaust all display rights to a work after a copy has been transferred.
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Anonymous Coward, 25 May 2011 @ 1:49pm

Re: Re: Re: Re: Re:
Didn't they find that the uses was de minimus in that case?
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Sean T Henry (profile), 25 May 2011 @ 1:55pm

Re: Re: Re: Re: I was going to say that
Unless the "artist" has that tattoo in a book of original tattoos that he created for people to chose from the generic selection of tribal tattoos; the work would be a work for hire. If Tyson asked to have this tattoo created specifically and paid the artist to create it and place it on his body it is a work for hire, just like if you create an ad or logo for a company you do not own it they do.
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Anonymous Coward, 25 May 2011 @ 2:05pm

Re: Re: Re: Re: Re: I was going to say that
I wish people who don't know what a "work for hire" is would stop talking about it...or at least read the other comments in the thread before saying the same wrong thing that others have been corrected on.
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Anonymous Coward, 25 May 2011 @ 2:08pm

Re: Re: Re: Re: Re: Re:
Nope. The court rejected the argument that "no protectible aspects of plaintiff's expression are discernable" and concluded the display was sufficiently observable to constitute prima facie infringement. You might be thinking of Sandoval v. New Line Cinema Corp., 147 F.3d 215 (2d Cir. 1998), where the court found plaintiff's photographs were so out-of-focus and obscured by the scene's actions that they were unrecognizable to a lay observer.
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Chosen Reject (profile), 25 May 2011 @ 2:11pm

Re: Re: Re: Re: Re: I was going to say that
No, in copyright law, work for hire is not defined as "paying someone for it". First, they'd have to have a written contract (copyright law specifies it has to be written) spelling out that it was a work for hire. But most importantly, not everything that can be copyrighted can be transferred in a work for hire situation; a tattoo being one of those things that can't. The only way for a tattoo to be a work for hire is if the tattoo artist and Tyson had an employee/employer relationship.

Again, to reiterate the point, just because someone paid you to create some work, does NOT mean they own the copyright.
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Anonymous Coward, 25 May 2011 @ 2:16pm

Re: Re: Re: Re: Re: Re: Re:
that's exactly the case I'm thinking of. thx.
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Anonymous Coward, 25 May 2011 @ 2:19pm

Re: Re: Re: Re: Re: Re: I was going to say that
Actually, his example of a collection of tribal tattoos is interesting, as it raises the possibility of being a contribution to a collective work if it was originally commissioned for that purpose.

I think there's a legitimate argument to be made that an addition to a pre-existing tattoo sleeve might be a contribution to a collective work, and therefore eligible to be considered a work made for hire, assuming there's a written agreement to that effect.
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crade (profile), 25 May 2011 @ 2:30pm

Re: Re: Re:
Oh I see. Thanks. I'm not sure where I got the idea but, for some reason I thought allowing satire was one of the differences compared to Canada. Obviously not.
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crade (profile), 25 May 2011 @ 2:37pm

Re: Re: Re:
Not sure where I got that info either. It's easy to get confused when none of it is based in anything logical or sensible in the first place.

In that case, definately. Sue the movie. Whatever money the tattoo dude makes off it he has clearly earned from his own hard work. Unlike the rest of us bloody leeches who do nothing but take.
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Todd Kelly, 25 May 2011 @ 3:59pm

It is not parody...
Mike, you have a basic misunderstanding of the parody defense in copyright law. The Ed Helm character may be a parody of Tyson, but this does not make the Ed Helm tattoo a parody of the Tyson tattoo. A parody of the tatoo would be a similar tattoo, perhaps with flowers in it (or something to that effect). You must distinguish between mocking of the character and a mocking of the artistic work that is the tattoo. Here the tattoo is an exact and complete copy of a copyrighted work.
Second, you also misunderstand the "effect on the market" factor in a fair use defense. It is the copyright holders right to dictate the market for his own work. The fact that the movie may make his work more popular is not a defense, because only the copyright holder can decide when to display (and essentially market) his own work. Warner has no right to this for him. That would be akin to placing a film on bit torrent and arguing that having the film on a torrent site made the film popular and therefore increased it's sales. While it may be fact, it is not a legal defense, because there was not right to copy the movie to a torrent.
Warner Brothers will clearly lose the copyright claim in the lawsuit.
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Rob Bodine (profile), 25 May 2011 @ 3:59pm

Misunderstanding Copyright Law
There are so many false definitions flying around here, I'm just glad the court, and not these comments, will govern the outcome of the dispute.
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Marcus Carab (profile), 25 May 2011 @ 4:00pm

Re: Re: Re: Re:
Well you're right, just not about satire - the difference is the Parody defence and, sadly, fair use in general. In Canada we have neither - just the much more limited concept of "Fair Dealing"
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Marcus Carab (profile), 25 May 2011 @ 4:01pm

Re: Re: Re: Re:
(that being said I believe you can successfully make a parody defence here, it just isn't codified or as well established)
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Anonymous Coward, 25 May 2011 @ 4:13pm

Re: parody
Assuming this is what you're talking about in that last paragraph, making the tattoo undesirable does not implicate the "impact on market" factor of fair use. Under that logic, quoting a book in a negative review wouldn't be fair use because it steers people away from a purchase, even though "criticism" is one of the explicitly mentioned purposes of having fair use in the first place. Effecting a market is not the same as supplanting a market, which is what that fair use factor is -really- concerned about.
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Anonymous Coward, 25 May 2011 @ 4:16pm

Re: Misunderstanding Copyright Law
Welcome to TechDirt!
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Jay (profile), 25 May 2011 @ 4:42pm

Re: Misunderstanding Copyright Law
Great, advertise yourself, add nothing to the conversation, Tweet how you're a jackass with little in regards to an opinion, then leave. Have I summed you up well enough?

Or are you actually going to expand on how exactly there are false definitions lying around because you're incentivized to litigate through copyright law?
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Anonymous Coward, 25 May 2011 @ 4:51pm

Re: Re: Misunderstanding Copyright Law
Defensive much?
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Jay (profile), 25 May 2011 @ 5:00pm

Re: Re: Re: Misunderstanding Copyright Law
Nope. Just like it when someone has a lot more substance than what he currently has in that post along with his tweet.
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DCL, 25 May 2011 @ 5:05pm

Re: Re: Re: Re: Re: Re:
So based on that are you saying that the artist would be able to sue for the first movie as well?

How does your explanation not imply that any artist can sue for any picture made of a piece of work.

where does the madness end!?!?!? think of the children!
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abc gum, 25 May 2011 @ 5:26pm

I would not want a Tattoo on my face screaming
"Da Plane ... da plane !"
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Rob Bodine (profile), 25 May 2011 @ 5:32pm

Re: Re: Misunderstanding Copyright Law
There are numerous corrections raised throughout these comments. There's no need for me to repost them. There are also numerous sarcastic comments that would be trolling if directed at a person rather than copyright law. It's interesting (for two reasons) that you accuse *me* of adding nothing constructive to the dialog. First, much of what appears in these comments aren't intended to be constructive. Second, the result is that there isn't much of a dialog. My apologies to those that are actually addressing these destructive arguments seriously by citing case law and explaining the concepts to these trolls. I don't mean to criticize your legitimate attempts to educate. I, however, don't believe they seek an education, so I won't take them seriously.
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OJ, 25 May 2011 @ 5:37pm

I say not Identical
If you look at a blown up image of the two side by side there are differences. The differences change from image to image because Ed Helms tattoo wasn't real so had to be re-applied but there are differences in the size, curvature and other features.
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OJ, 25 May 2011 @ 5:49pm

Other tattoos
What about all the athletes and celebrities that have mickey mouse, tinker bell, mighty mouse, USC, the Texas Longhorn logo nike swoosh, or any of the numerous cartoon characters and other copyrighted commercial logos as tattoos. Aren't they also violating copyright law then?
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OJ, 25 May 2011 @ 5:49pm

I say not Identical
If you look at a blown up image of the two side by side there are differences. The differences change from image to image because Ed Helms tattoo wasn't real so had to be re-applied but there are differences in the size, curvature and other features.
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Pseudonym, 25 May 2011 @ 6:17pm

Just ask the Maori
Apparently this case is causing a big stink in New Zealand.

From the linked article:

Professor Ngahuia Te Awekotuku, author of Mau Moko: The World of Maori Tattoo, described Mr Whitmill's claims of ownership as insufferable arrogance. "It is astounding that a Pakeha tattooist who inscribes an African American's flesh with what he considers to be a Maori design has the gall to claim that design as his intellectual property," she said.

"The tattooist has never consulted with Maori, has never had experience of Maori and originally and obviously stole the design that he put on Tyson.

"The tattooist has an incredible arrogance to assume he has the intellectual right to claim the design form of an indigenous culture that is not his."
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JMT, 25 May 2011 @ 6:34pm

Re: Re: Re: Misunderstanding Copyright Law
You lawers can argue amongst yourselves all you want, but most people reading about this story would instinctively realise that it's utterly stupid that a film-maker could be punished for using Tyson's tatoo in this fashion.

It's depressing how little copyright law and common sense seem to overlap these days.
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JMT, 25 May 2011 @ 6:38pm

Re: Just ask the Maori
It'd be more accurate to say it's causing a big stink amongst a small group of New Zealanders. The rest of us think the whole thing's ridiculous. ;)
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Anonymous Coward, 25 May 2011 @ 10:01pm

Re: Re: Re: Re: Re: Re: Re:
Not necessarily. I'm saying the first-sale doctrine doesn't cover the use in the first movie.

There may be some other reason why it is noninfringing.

Generally speaking, an artist has the right to prevent copies of their work (including pictures). There are, of course, exceptions.
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Anonymous Coward, 25 May 2011 @ 10:03pm

Re: Re: Re: Re: Misunderstanding Copyright Law
Such as the substance of your post calling him a jackass?
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Anonymous Coward, 25 May 2011 @ 10:11pm

Re: Re: Re: Re: Misunderstanding Copyright Law
It would be nice if the arguing about whether something is or is not (as opposed to should or should not be) infringement, or is or is not (as opposed to should or should not be) a fair use parody, were done by people who know something about copyright law, or are at least willing to learn.

Unfortunately, you get a lot of people here on Techdirt who know very little, or just a little more than that, making bold and unfounded pronouncements about what "clearly" is parody or "clearly" is fair use or some other dimestore legal analysis.

So sometimes the lawyers like to shine a little light on the subject and correct misconceptions. If you'd rather turn of the lights and let the blind continue leading the blind, that's too bad.
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Anonymous Coward, 25 May 2011 @ 10:12pm

Re: I say not Identical
Doesn't have to be identical to be an infringement, though.
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techflaws.org (profile), 25 May 2011 @ 10:18pm

Thanks, but no thanks.
don't believe they seek an education,

Definitely not from someone with a twisted mindset like this.
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Jay (profile), 26 May 2011 @ 12:57am

Re: Re: Re: Re: Re: Misunderstanding Copyright Law
Rob's post is about how people are misunderstanding the law. So is his tweet here.

He's not explaining how the comments are uninformed, makes a sweeping generalization of the community of Techdirt, then says nothing to explain his reasoning.

Looking at how he's in Real Estate, copyright law, and corporate law, I find it very poor form to come into a debate, merely to make a comment that's supposed to rile the people up. I would have preferred if he had debated directly with the person that had said "XYZ" rather than come in to say "I'm just glad the court, and not these comments, will govern the outcome of the dispute."

It seems to dismiss everyone involved in Techdirt, which raises my ire. Personally, if I have an issue with someone's way of discussion, I would take it up with that post. That's Rob's choice. But it seems to come from some moral high ground that Rob is not privy to. Sorry, I see him as just another poster. It would be far more beneficial if he had said what the exact problems with the case law were or helped people to understand fair use. Hell, I wouldn't have been critical if it seemed he knew something of the case law involved. But coming into _Any_ community, then dismissing the arguments wholesale is a quick way to lose any credibility for your logos and ethos with me.
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JMT, 26 May 2011 @ 3:44am

Re: Re: Re: Re: Re: Misunderstanding Copyright Law
People are far more willing to learn about (not to mention obey) laws when they respect them, and this is one of many examples of situations that rapidly cause people to lose respect for copyright laws.

What the lawyers are shining a light on, probably unintentionally, is how ridiculous it is that this debate is even taking place.
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gilroy0 (profile), 26 May 2011 @ 4:06am

Rookie mistake
The judge is clearing mistaking the map for the territory. Because the shape of Tyson's face is wildly different than the shape of Helm's, there is no way to actually copy the tattoo from the former to the latter. They're different because the topology is different. Helm's tattoo might be "inspired" by Tyson's but they're not the same. (Just look at the picture.)
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Anonymous Coward, 26 May 2011 @ 7:31am

Work for hire?
Didn't Tyson (or someone in his camp) pay for the tattoo? That would make it a "work for hire" and mean Tyson owns the rights to it, no? Did Tyson sign anything that waived his rights or transferred the rights back to the tattoo artist?
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crade (profile), 26 May 2011 @ 7:55am

Re: Re: Re: Re: Re:
Yeah, we definately have a parody defense in Canada.
I know fair dealing here is more limited in many ways than the U.S. fair use, although I certainly wouldn't be able define the differences. Do you know of somewhere that spells out the differences in a nice concise way? I don't work well with abstracts like "It's much more limited". Especially since our rulings on the subject always seem to usually follow the U.S.'s lead.
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Anonymous Coward, 26 May 2011 @ 9:59am

Re: Re: Re: Re: Re: Re: Misunderstanding Copyright Law
What would the value be of him repeating the corrections that had already been stated numerous times in these comments by the time he posted?

Nothing in his post dismisses everyone involved in the comments. If you feel that way, I think, as I stated earlier, you're just irrationally defensive when someone challenges "your side."
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Anonymous Coward, 26 May 2011 @ 10:36am

Re: Re: Re: Re: Re: Re: Misunderstanding Copyright Law
I agree with you.

But regardless of whether the laws should or should not be modified, misrepresenting what they *are* doesn't help anyone.
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Anonymous Coward, 26 May 2011 @ 10:37am

Re: Rookie mistake
Doesn't have to be identical to be an infringement.
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Anonymous Coward, 26 May 2011 @ 10:38am

Re: Work for hire?
I can't tell if this is just trolling or if nobody reads comments before posting.
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crade (profile), 26 May 2011 @ 10:40am

Re: Re: Rookie mistake
but it does to be a copy.
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Anonymous Coward, 26 May 2011 @ 11:10am

Re: Re: Re: Rookie mistake
Says who?

If you copy 90% of the original, then it's a copy of 90% of the original.

It's an imperfect copy.

Regardless, not much relevance to the case, unless the slight differences in the Helms tattoo are eliminations of the only bits that were original to the Tyson tattoo.
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Jay (profile), 26 May 2011 @ 11:28am

Re: Re: Re: Re: Re: Re: Re: Misunderstanding Copyright Law
No, it's not an irrational defense. It's just rather annoying that he's not pulling a specific example and debating that.

It's similar to going to the bottom of this current forum saying "wow, this place sucks" then leaving it at that.
I've already explained about the "false definitions" needing further clarification of what exactly the point is. You can agree with him if you feel. The problem as I see it, is that a sweeping argument does not move the argument forward and makes him look poorer in the debate.

Then going on to tweet about how you can be misinformed through the comments of Techdirt, is even worse. Perhaps he doesn't see a lot of value in correcting trolls, but again, that's his choice. It helps to define the arguments and understand the exact issues involved with copyright. Great, he doesn't want to repeat the arguments here. Why in the world would you bring it up and come to talk and discuss the points without anything to point to? Why allow other posters to cite case law without affirming that it is correct or incorrect? Those are far better solutions than "being glad the court will decide", especially as the court appears to be getting it wrong.

So again, I'm not being defensive. The first statement continues to look like a poor choice in wording, adding to a poor tweet, that could have perhaps better been used in discussing the merits (or lack) of the arguments here than waiting for the courts to decide.

JMT's opinion coincides in a similar manner to what I'm discussing. The least I would ask of Rob is say more and clarify his position than what the first post does.

The second one below, explains a lot better than the first.

Finally this:

"you're just irrationally defensive when someone challenges "your side.""

Look, I'm against copyright because I've seen no evidence that says it actually helps people build, create, or inspire them to newer heights.

I've not seen copyright used in creating a song.
I've not seen copyright used in making a new game
I've not seen copyright create a new movie.

If anything, copyright is retroactive, hurting people financially for what they've done. Artists, inventors, tinkerers and innovators have all suffered because of copyright laws that prohibit what they can do.

After reading Joe Karaganis' book, "Media Piracy" and seeing that enforcement is futile, I see nothing but ill effects coming down the pipeline.

That's my view, based on the research. If someone coincides with that view, great. If not, we'll talk until I have more information that says that copyright is peaches and gravy. I'll wait and read all data, and keep a skeptical view on copyright, since the harms of enforcement far outweight the "benefits". That's my side in a nutshell.

As I've said before, I'm not being defensive in saying his first post was poor and lacking. There were a lot of things that could have been improved to get the message across.
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Anonymous Coward, 26 May 2011 @ 12:02pm

Re: Re: Re: Re: Re: Re: Re: Re: Misunderstanding Copyright Law
I haven't seen his Tweet, so I know nothing about that. However, I think informing people that there is misinformation in Techdirt comments is a public service. Hard to write a dissertaion in 140 characters.

I myself like to correct such misinformation here, but I don't see why three different people need to say the same thing (e.g., just because you paid someone to do work doesn't make it a work made for hire!).

"Why in the world would you bring it up and come to talk and discuss the points without anything to point to?"

It's almost as if some commenters on Techdirt just want to get in a snarky comment without engaging in a serious debate! I'm sure you're just as vigilant with such snarky commenters when they agree with you, right!?

I think your first post shows defensiveness because of both this double standard and because of it's tone (not to mention hypocritical nature). How is calling someone a jackass contributing value?

On a side note, how exactly is the court getting it wrong? You seem to be willfully ignoring the ACTUAL POINTS BEING MADE ABOUT THE LAW in these comments.
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Jay (profile), 26 May 2011 @ 1:29pm

Re: Re: Re: Re: Re: Re: Re: Re: Re: Misunderstanding Copyright Law
Last part first:

"On a side note, how exactly is the court getting it wrong? You seem to be willfully ignoring the ACTUAL POINTS BEING MADE ABOUT THE LAW in these comments."

Let's see, he owns a tattoo placed on a living man's head. He's stopping a parody expression and it needs to be litigated that this is fair use. Top that off with how Victor has made the Maori tribe angry when he didn't even ask them for permission. Somehow, the law being used to litigate and give money to a guy who has nothing to do with the movie being produced nor the parody tattoo being made seems wrong on so many levels...

"I think your first post shows defensiveness because of both this double standard and because of it's tone (not to mention hypocritical nature). How is calling someone a jackass contributing value?"

Taking the post's lack of substance along with the tweet, I came to the conclusion that he was doing a similar tactic to other "trolls" on the site, in trying to start up a conversation and being critical of others without specifics.

Perhaps my bias against most lawyers is prevalent, in that I thought Rob was automatically a copyright maximalist, and for that I apologize. Seeing as how FUDbuster is a law student, and Terry Hart's... analysis is mired in detail, I put Rob in the same category.

The lawyers that fight against copyright seem to be fewer and farther between than those that want to mire everything in law and writ.
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Anonymous Coward, 26 May 2011 @ 2:51pm

Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Misunderstanding Copyright Law
"Let's see, he owns a tattoo placed on a living man's head."

Not really. He owns the copyright in the tattoo. So?

"He's stopping a parody expression"

Have you read any of the comments regarding what is required to be considered a "parody" for purposes of copyright fair use? Are you just closing your eyes and screaming "la la la" when anyone writes something that contradicts Masnick's unsupported conclusions or your own preconceptions?

"and it needs to be litigated that this is fair use."

I'm not sure what you mean here. Yes, legal conclusions usually need to be litigated for a court to say they are right or wrong.

"Top that off with how Victor has made the Maori tribe angry when he didn't even ask them for permission."

How on earth is that relevant to the judge's legal determination?

All this may "seem wrong" to you, but that doesn't mean "the court appears to be getting it wrong."

"I don't like the law" is not the same as "the court isn't doing it's job right."
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Gene Cavanaugh (profile), 26 May 2011 @ 4:08pm

Mike Tyson's tattoo
Great analysis and proposed conclusion.
Judges are human, and make human mistakes; hopefully a higher court will correct this situation.
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Jay (profile), 26 May 2011 @ 4:28pm

Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Misunderstanding Copyright Law
"Not really. He owns the copyright in the tattoo. So"

Herein lies the problem. The tattoo is based on two separate issues. It's a Maori warrior tribal tattoo, and it's on display on a living being. So having a copyright on this expression means he's allowed to stop anyone from using a parody of it? It's why the Maori are upset by it. It's rather insulting to their culture.

"Have you read any of the comments regarding what is required to be considered a "parody" for purposes of copyright fair use? "

So it has to be declared a parody in court for it to be one?
Better yet, why is it that this tattoo can place an injunction on DVD sales among other distribution methods?

1)There seems to be no harm in this parody to his original.

2) The nature of the work is a crude marker from a drunken night of outright partying

3) The entire work may be used but it's on someone else's face and has been designed for a parody.

4) Most important, Helms' fake tattoo is not hurting the market for getting tattoos
-------------------------------------------------

"I'm not sure what you mean here. Yes, legal conclusions usually need to be litigated for a court to say they are right or wrong. "

For what purpose does this need to be litigated? Damages from a copyright on a guy's face? Having a parody of Mike Tyson's tattoo? A permanent injunction on the sale of Hangover 2 because someone made a joke about the tattoo that Whitmill can't handle? In all honesty, it makes no sense why this is having to go to court in the first place. To have the judge say that the merits go to Whitmill in the first place, is troubling, because this does not pass the smell test.

It's akin to Righthaven bullying websites for quick settlements.

"How on earth is that relevant to the judge's legal determination?"

It's more about looking into what was discussed earlier (Sean T Henry) about this being a generic tattoo. It may become a work for hire, which may change everything involved.

This will raise a LOT of problems, however. If it's true that Whitmill owns the copyright on Tyson's tattoo, does this mean no one can add to it? Does it also mean Whitmill owns cuts of Tyson's proceeds? Does he own Tyson? The implications are far reaching in trying to block one expression that pretty much falls into fair use territory.

What I find incredibly ironic however, is how Mike Tyson, even though we're arguing about his tattoo, isn't a part of the conversation.

""I don't like the law" is not the same as "the court isn't doing it's job right.""

I'll fight bad laws that are used to stifle creativity, innovation, and collaboration in all forms. I don't agree with how the Supreme Court has butchered the 4th Amendment recently, by saving no expense on the War on Drugs.

Had the court done its job and looked into this case and thought about the common law on it (Moron in a hurry test, 4 questions, etc) she would have thrown this out as it's obvious this case has no merit.

I'm not a fan of Warner Bros entirely, but being punished for making a parody of a tattoo, with an injunction, doesn't seem reasonable in the slightest.
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