Tattoo Copyright Strikes Again: Tattoo Artist Sues THQ For Accurately Representing Fighter's Tattoo In Game

from the ownership-society dept

Fri, Dec 7th 2012 10:39am — Mike Masnick

About a year and a half ago, we wrote what we thought was just a fun theoretical post about copyrights in tattoos. The general point was that if a tattoo artist creates a new and unique design, then, technically, they're the one who gets the copyright. And that can lead to some awkward legal issues. Of course, it barely took three weeks before that "theoretical" question became real, when a tattoo artist who had done Mike Tyson's famous tattoo sued Warner Bros. because the character Ed Helms plays in The Hangover 2 ends up with a similar (though not identical) tattoo. WB eventually settled that case to make it go away.

As a bunch of folks have sent in the news that tattoo artist Christopher Escobedo has sued video game company THQ because they accurately depicted UFC fighter Carlos Condit in the game UFC Undisputed 2010. Condit has a prominent "lion" tattoo which is replicated in the game. You can see the tattoo here:

None of the news reports we've seen have posted the actual legal filing, so we've posted it here and embedded it below. There are a few things worth noting. The game came out in 2010. Escobedo created the tattoo in 2009... but did not register it until February 24, 2012. That may significantly limit Escobedo's ability to collect. Specifically, if you want to ask for statutory damages (up to $150,000), registration has to occur within 3 months of the work being published and prior to infringement. In this case, neither happened -- which is why Escobedo is asking only for "actual damages." And that's going to make this case difficult for him. He's claiming that he wouldn't have licensed the image, which is how he's going to argue for really high damages, but a court might not buy any real or significant "damage" to the copyright being used in the game.

Honestly, much of this feels like the artist is using this more as a way to get publicity, rather than as a way to win a lawsuit. After all, the lawsuit got attention... because the artist issued his own press release about it. That press release mentions the Mike Tyson tattoo case, suggesting that some people saw that and started looking for other opportunities to use tattoo cases to sue big companies, hoping for easy settlements.

Escobedo v Thq (PDF)Escobedo v Thq (Text)

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Filed Under: carlos condit, christopher escobedo, copyright, tattoo
Companies: thq

31 Comments

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out_of_the_blue, 7 Dec 2012 @ 10:59am

"feels like the artist is using this more as a way to get publicity"
OMG! Reverse "Streisand Effect"! You needz to label this quick, Mike! Be your second claim to fame!
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- Another AC, 7 Dec 2012 @ 11:06am
  
  Re: "feels like the artist is using this more as a way to get publicity"
  Probably more accurate to say this is the Streisand Effect in action, it's just that in this case the attention is wanted rather than unwanted.
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- Rikuo (profile), 7 Dec 2012 @ 11:15am
  
  Re: "feels like the artist is using this more as a way to get publicity"
  Out of the Blue is jealous that Mike coined a popular term that refers to something witty and interesting. What have you done, hasn't_got_a_clue?
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- Trails (profile), 7 Dec 2012 @ 12:03pm
  
  Re: "feels like the artist is using this more as a way to get publicity"
  guttersnipe (ˈɡʌtəˌsnaɪp)
  
  � n
  a person regarded as having the behaviour, morals, etc, of one brought up in squalor
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Anonymous Coward, 7 Dec 2012 @ 11:01am

Any photographer that have captured the tatoo in pictures should be feeling nervous about now.
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- Donny, 4 Mar 2017 @ 3:39pm
  
  Re: Tattoo Copyright
  Well, there is a question in the eyes of the law.. If a photographer takes a picture of a sexy model, lets say like penthouse takes a picture of a girl naked and she has a custom design tattoo on her belly and it's showing in the picture, the artist of the tattoo can take penthouse to court in a lawsuit for damages, because of the art being reprinted or displayed in a commercial use..
  
  Now they are arguements out there and it's in courts now, if the federal courts rule that the tattoo artist owns copyright and you can't take a picture of that person while displaying that art then this is going to be a problem for not only models with tattoos but for celeberties appearing on TV with that tattoo showing..
  
  Now there is an argument that when a tattoo artist applies his work on a human body as a canvas, he / she is creating that art for this reason for display and cannot own the copyright in this case, because one can not own a human being, and that eliminates the copyright in that fashion, how ever the tattoo artist still owns the copyright of the art where no one can reproduce such art, meaning can't give some one a tattoo of that same art.. So that would be the extent to the tattoo artist copyright.
  
  this is going to be a sticky situation and if they rule that the tattoo artist owns the copyright and a celeberty can't be on TV with that art showing , then this is going to probably ruin an actor/ acreess carrier or model's carrier, unless they get this art removed or erase it from view..
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Anonymous Coward, 7 Dec 2012 @ 11:04am

File this under I can't believe people still respect copyright law:

�People often believe that they own the images that are tattooed on them by tattoo artists,� explains Speth. �In reality, the owner of the tattoo artwork is the creator of the work, unless there is a written assignment of the copyright in the tattoo art.�
...
These cases are an important reminder to celebrities that if they want to own their tattoos, they must ask for a written assignment of the copyright from the tattoo artist. Otherwise, what they have paid for is merely a license to display the image on their body. This license, according to Speth, does not include the right to give third parties (such as video game developers or movie producers) permission to copy and commercialize the image.
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- Anonymous Coward, 7 Dec 2012 @ 4:58pm
  
  Re:
  It's stupid.
  
  Tattoos are not images. They are custom artwork done directly on the body of a customer. If I walk into a city, get some random artist to paint my portrait and buy it, then he does not hold copyright to that portrait. He did it for me, using me, and the job will be unique to me.
  
  Tattoos follow the same vein. No matter how good an artist gets, every job will be slightly unique and is a separate product.
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  - Anonymous Coward, 7 Dec 2012 @ 5:52pm
    
    Re: Re:
    Actually, without a contract stating one way or another that could be argued in court. However, the image that the tattoo artist uses is not created on the body, first. That is the second iteration of the image since they sketch out what they are going to do, first. I think you might find you hold no copyright on your body work.
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    - G Thompson (profile), 7 Dec 2012 @ 10:09pm
      
      Re: Re: Re:
      If Mr Condit asked the tattoo artist for this specific design and then the artist sketched it out on paper first for approval and then applied it to Mr Corbit's body, this even more than anything else creates upon balance the basis for a work for hire since the artist gets approval for the work by the client first.
      
      IF this is the case Mr Escobedo could be up for fraud since he registered the copyright on the work way after he had been payed. And in that instance the copyright is solely retained by Mr Escobedo who has already released his image to THQ for usage in the transformative work (the Game).
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      - Marc John Randazza (profile), 9 Dec 2012 @ 10:08am
        
        Re: Re: Re: Re:
        Wrong.
        
        Everyone who saw your comment is now dumber for having read it. I award you no points, and may God have mercy on your soul.
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        G Thompson (profile), 9 Dec 2012 @ 8:02pm
        
        Re: Re: Re: Re: Re:
        I apologise since reading this (and your response on your own blog) I have now been made aware that the US copyright law requires that a work for hire needs to be explicitly created, whereas under Australian copyright law that same work for hire (or 'valuable consideration' as we call it) can be implied. [ Copyright Act, 1968, � 35(5) .]
        
        This basically means there is a major difference since under AU reading a commissioning party will acquire the copyright even in the absence of an agreement as long as there was a contractual undertaking AND the work is a either a photographs, portraits, or engraving AND the work was created after 1998.
        
        Though this is totally different if the work was a journalistic work, and even different still if it was a sound recording, cinematographic work, audio &
        video broadcast, or typographical arrangements of published
        works. Yeah *eyeroll*
        
        So basically whereas the US needs an express agreement, we (and the UK to some extent too) don't.
        
        So for all the people reading my comment above, disregard it unless it's in relation to UK or AU copyright systems.
        
        Go read Marc's very nicely worded reasoning of why Fair use is the real reason why there is in all likelihood no claim here.
        
        Though I have to ask... "may God have mercy on your soul"? God??? really? FSM is looking at you! :)~~
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        Marc John Randazza (profile), 10 Dec 2012 @ 8:15am
        
        Re: Re: Re: Re: Re: Re:
        Though I have to ask... "may God have mercy on your soul"? God??? really? FSM is looking at you! :)~~
        
        Since you are Australian, I will forgive you for not catching the Billy Madison reference.
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  - Marc John Randazza (profile), 9 Dec 2012 @ 10:05am
    
    Re: Re:
    If I walk into a city, get some random artist to paint my portrait and buy it, then he does not hold copyright to that portrait. He did it for me, using me, and the job will be unique to me.
    
    Wrong.
    
    The presumption is that the artist owns the copyright. You can take that portrait home, but you can't start selling prints of it. You don't own the copyright in a work just because it is a picture of you.
    
    However, if you're smart, you tell the artist to sign a "work for hire" agreement before he starts. Then you own the painting and the copyright to the painting, and you can do as you like with both the physical object and reprints of it.
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Hugues Lamy (profile), 7 Dec 2012 @ 11:24am

Work for hire
Is the tattoos would qualified for work for hire ? You hire somebody to do a very unique specific design for a single purpose ? In that case, the artist waive their copyrights. I also thought of the same thing of the wedding photographers, but maybe in the contract you signed copyright could be assigned to the artist and not to the person hiring them.

I remember specially that clause in my wedding photography contract. I never been tattooed so I don't know if they even have contract. I'm guessing that for the most famous of them they do have contract. In this case, I would imagine they put that the transfer the copyright to them and make sure they are not work for hire.
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- Rikuo (profile), 7 Dec 2012 @ 11:31am
  
  Re: Work for hire
  Can the artist sue you if you get rid of the tattoo...fuck, shouldn't give them the idea.
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Anonymous Coward, 7 Dec 2012 @ 11:33am

The only time this makes any sense (at all) to apply copyright to a tatoos is for directly copying of a tatoo design and putting it onto another person as a tatoo. Even then, it is a stretch and has much in common with copyrighting garden designs and layouts (which have been denied protection).

Recreating the person's likeness and including the tatoo should be completely clear of any copyright issues. It just doesn't make sense.
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Anonymous Coward, 7 Dec 2012 @ 11:50am

So, why would someone get a tattoo if you basically sell the rights to your body to someone else, assuming the judge rules in the tattoo artist's favor?

Sounds kind of like slavery to me.
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JWW (profile), 7 Dec 2012 @ 11:56am

Coming next
I predict the next silly lawsuit to come from this tattoo nonsense will involve a game developer deliberately changing a tattoo for an athlete's likeness in a game and being sued for defamation of character by not representing them correctly as they are in the game....
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Argonel (profile), 7 Dec 2012 @ 12:05pm

It should be pretty easy to figure out actal damages in this case.

Expected continuing income from the tattoo: $0
Actual continuing income from the likeness: $0
Change in business as a result of the likeness/lawsuit +$$

Sounds like he owes THQ for the additional publicity.
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Anonymous Coward, 7 Dec 2012 @ 12:42pm

"lion" tattoo
That childish smudge of ink is supposed to be a lion??
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Anonymous Coward, 7 Dec 2012 @ 1:06pm

more coming next
And in the same vein, plastic surgeons will register copyrights on work they've on people. Celebrities will have to pay a cut every time they're photographed or in a movie.
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- John Fenderson (profile), 7 Dec 2012 @ 1:08pm
  
  Re: more coming next
  They don't really have to register it. It's already copyrighted.
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  - ldne, 7 Dec 2012 @ 1:45pm
    
    Re: Re: more coming next
    Which is part of the problem. Also, you can't legally obtain ownership of a person and the tat is a part of the guy's skin. Copyright and patent law just keeps getting stupider and stupider.
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Mesonoxian Eve (profile), 7 Dec 2012 @ 1:13pm

The only Tattoo I know of that is covered under copyright is the one that screams "Da plane! Da plane!"

This case gets tossed faster than a salad at the Olive Garden.
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Anonymous Coward, 7 Dec 2012 @ 4:36pm

What next, suing for accurately depicting someone's nose job?
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varagix, 7 Dec 2012 @ 5:58pm

Worst part about this whole mess is that THQ has been, and still is, in a lot of financial trouble this year. However this lawsuit goes down, it's bad news for the future of THQ.
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PaulT (profile), 8 Dec 2012 @ 5:09am

"actual damages"

Yes, please, I'd like to know how a design that he claims he wouldn't have licensed in the first place, that he put in a place that would be visible in public without any control over when and where it would be shown, caused him any actual damage by being licensed. About the only possible explanation would be that its appearance in the game lost him future clients, which would not only be a major stretch but a very tricky thing to actually prove.

Given THQ's recent financial woes, it's not even a case of someone getting jealous over someone else's success and demanding a piece of the action. Unless he really is deluded, it's either a self-publicity stunt or whichever lawyer advised him to copyright his designs wants some extra billable hours...
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The Rufmeister-General, 8 Dec 2012 @ 6:52am

Doesn't think this over long enough...
"Honestly, much of this feels like the artist is using this more as a way to get publicity, rather than as a way to win a lawsuit. After all, the lawsuit got attention... because the artist issued his own press release about it."

I find this funny. Publicity for art sounds good. Until you realize that if you get a tattoo from this guy, you run the risk of either yourself or a business partner sued if you happen to accidentally get successful.

If I were to shop around for a tattoo artist, then one that has proven to be vindictive, greedy and sue-happy would not be my first choice. Caveat emptor. :)
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- The Rufmeister-General, 8 Dec 2012 @ 6:54am
  
  Re: Doesn't think this over long enough...
  My apologies for the typos and grammar errors in this post. I should have made an account so I could have edited.
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Marc John Randazza (profile), 9 Dec 2012 @ 10:48am

The correct answer
I think your statement that the artist sued "just to get publicity" is unfounded and unfair. I know the plaintiff's attorney, and she's not going to sign a complaint that is for no reason but a PR stunt.

That said, I still think her case is going to fail. The correct answer is here.
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