All The Things I Learned From A Stupid Ongoing Tattoo Copyright Lawsuit
from the all-the-stupid-you-can-handle dept
Not terribly long ago, in this exact same galaxy, we wrote about a lawsuit brought by tattoo artist Christopher Escobedo against THQ for using an accurately depicted Carlos Condit in their UFC fighting game, Undisputed 2010. Just so we're all on the same page here, Condit has a tattoo of a lion on his ribs that was inked by Escobedo in real life, who sued the now-bankrupt THQ over its inclusion in the game for over four million dollars. In a game that depicted hundreds of properly licensed fighters and sold 4.1 million copies, Escobedo claimed damages of over a dollar per game for his tattoo that nobody really seems to know if he actually has a valid copyright claim over. Pretty crazy, right? Shockingly, this case is still going on thanks to Escobedo (though it's playing out in bankruptcy court at this point) and it's taught me a number of things.
Lesson #1: Apparently, an image of a tattoo is worth exactly as much as the image of the entire person.
Escobedo filed an unsecured claim of $4.16 million, asserting that he was entitled to 2 percent of all post-bankruptcy petition net sales of the games. Unfortunately for Escobedo, his first swing was a miss. After the debtors filed a motion to estimate the unsecured claim at $0, the judge valued the tattoo theft claim at $22,500, which was the payment made by THQ to Condit for his image in the video game.What's dumber than asking for four-mil-do because a tattoo you drew ended up in a game? Well, how about the idea that the depiction of the tattoo is worth exactly as much as that of the entire image of the person including the tattoo. This teaches me something I had never realized: every visible part of me that is not adorned with needle-ink is absolutely worthless. Granted, my parents have been telling me this for years, but I was surprised to hear that they were right all along. Go ahead and read the next lesson while I call my parents and apologize for not amounting to much.
Lesson #2: Tattoos are more leverageable than music.
"THQ had literally millions of songs to choose from when deciding what music clips to include in its games," said the motion for reconsideration. "There was no restriction on their choice. Thus, they had the opportunity to choose the least expensive music license they could get. To produce a UFC computer game, however, THQ had a limited number of fighters to choose from and had no choice but to either not include the fighter's tattoo on the avatars or include it. That fact alone would have placed Escobedo in a very different bargaining position than the music publisher and makes it likely that Escobedo would have negotiated a per game royalty rather than a one-time fee."Well, the real lesson to learn here is that apparently tattoo artists have had augmentation procedures a la Deus Ex installed within their bodies that prevent video game companies from telling them to go outside and play hide-and-go-f$%#-yourself, because any licensing request such as what is written above would have been laughed out of THQ's office. In other words, you can't really claim harm when you assert that you would have bargained from a position that never would have been entertained. And who knew that tattoos were as, or more, valuable than music? That means that anyone attending a Maroon 5 concert is there for Adam Levine's body-ink as much as or more than they are for their music. And if that makes any sense to you, punch yourself in the face until your brain reboots.
Lesson #3: Too many people apply the rules of baseball to the rest of life.
The bankruptcy judge decided to keep the $22,500 valuation. Having swung and missed twice, Escobedo is now appealing the order to a bankruptcy appellate panel.Friends, tattoo artists, everyone: if at first you don't succeed, and the second time you don't succeed, and you're just a jackass looking for an insane amount of money when an amount that breaks epidermal logic has already been offered to you, don't think that you have to get that third strike. Unlike baseball, you can just walk away, head for the dugout, and admit defeat. Which Escobedo should do, not only because he's on the losing side of a really dumb argument, but also because the more he pushes this, the more likely we get a ruling on whether he has a copyright claim on a picture he drew on someone else's skin at all.
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Filed Under: carlos condit, christopher escobedo, copyright, tattoos, ufc
Companies: thq
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With the Carreons coming in close second.
And OOTB in scoring position.
…dammit there goes my baseball metaphors again.
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License
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It kinda sounds like - lawsuit.
It has a sound similar to - lawsuit.
It looks sorta like - lawsuit.
If you squint its totes the same - lawsuit.
Still trying to find the good copyright is providing to society here.
It would be awesome if the fighter filed a lawsuit for copyfraud against the inker. It was OBVIOUSLY work for hire.
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Re: Not legally a work for hire.
"The circumstances in which a work is considered a "work made for hire" is determined by the United States Copyright Act of 1976 as either
(1) a work prepared by an employee within the scope of his or her employment; or (2) a work specially ordered or commissioned for use as a contribution to a collective work, as a part of a motion picture or other audiovisual work, as a translation, as a supplementary work, as a compilation, as an instructional text, as a test, as answer material for a test, or as an atlas, if the parties expressly agree in a written instrument signed by them that the work shall be considered a work made for hire. (17 U.S.C. § 101)" See https://en.wikipedia.org/wiki/Work_for_hire#Employer.E2.80.93employee_relationship_under_agency_law
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Re: Re: Not legally a work for hire.
That would include most tattoos as they are collected on a persons skin.
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Re: Re: Not legally a work for hire.
Honestly the most generous explanation is that such a crazy distinction wasn't even considered before now due to how insanely stupid the idea is, that a person could pay to have an essentially permanent mark placed on their skin yet not actually own it.
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Fair use
Now let's get a ruling on the books to this effect, preferably in circuit court and not just district court.
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Lawsuits that target displays of clients' tattoos remain incredibly rare, even when the client is an athlete or celebrity.
That's largely because tattoo artists recognize that literal application of copyright law is inconsistent with their values and the informal norms that continue to govern their industry. Most tattoo artists simply reject the notion that they should have any say about what their clients do with their tattoos.
I've written about the informal copyright norms of the tattoo industry in an article forthcoming in the Minnesota Law Review and available here: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2145048.
The tattoo industry as a whole seems to understand implicitly that aggressive copyright enforcement is probably bad for business, a lesson perhaps other industries should consider.
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Yo Momma / Prenda Steel
Tim, this is pretty weak sarcasm. Unless, of course, your momma has changed her porn name to Prenda Steele.
And folks, do read the Perzanowski article linked above -- it's good.
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"It’s not mine anymore. You own that, you own your body. I don’t own that anymore. I own the image, because I have [the drawing] taped up on my wall and I took a picture of it. That’s as far as my ownership goes. [Claiming control over the client’s use of tattoo] is ridiculous. That goes against everything that tattooing is. A tattoo is an affirmation that it is your body, … that you own your own self, because you’ll put whatever you want on your own body. For somebody else to say, 'Oh no, I own part of that. That’s my arm.' No, it’s not your fucking arm, it’s my fucking arm. Screw you."
That's not a statement about the law; the law is largely irrelevant for most tattooers. It's a statement of their collective attitude towards their clients.
The Hangover II case and the Escobedo case, admittedly, are a bit different in that it's not the client who is making the use and being sued. It's a third party. No one sued Mike Tyson or Carlos Condit. And even if they were sued, their public displays are almost certainly protected under section 109 of the Copyright Act.
The more interesting story here, I think, is that the tattoo industry has largely opted out of the copyright regime. Despite that fact, it still creates a massive amount of new original work every day.
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My dad was a Navyman and had six tattoos he got all over the world, including a tattoo of a lady in a bathing suit with a tattoo of a heart on her thigh, and I never got a single tattoo because of it--but then, people in my generation pretty much didn't get tattoos. It was succeeding generations that made it strip-mall-tattoo-parlor popular. No need to go to Japan, you can get a tattoo at the store on the corner.
It may be in the interest of one tattoo artist to make a cash-grab in one instance, but it is not in the interest of the tattoo industry as a whole for there to be any question whatsoever that a famous client can sell his image, including the tattoo that is part of his or her image. Any other ruling will kill the industry.
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Seriously...
The actual truth is... once you sell the art, especially if it's become an integral part of someone else's body... you have also sold your rights to that art... Legally, the ONLY person to have rights on Carlos Condit's tattoos... is Carlos Condit.
What a douchebag...
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Re: Re: Not legally a work for hire.
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A simple slip of paper fixes that problem - and to avoid lawsuits they already make you sign a "yes, I realize this is permanent and stuff" release, to my knowledge.
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Re: Re: Not legally a work for hire.
"(1) a work prepared by an employee within the scope of his or her employment;"
Aren't most tattoo artists employees of the tattoo parlor/business? This would be analogous to an animator working for Disney not owning their work, in my opinion.
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Re: Re: Re: Not legally a work for hire.
is the house painter who painted your house due ADDITIONAL compensation when the house is pictured on the front of the local real estate mag ? ? ?
is the artist who painted your oil portrait over the fireplace due ADDITIONAL compensation when they do an interview with you and have a photo of you in front of your fireplace with your portrait in view ? ? ?
is the clothing designer due ADDITIONAL compensation when a picture of your wearing that garment shows up ANYWHERE ? ? ?
i think not, the logic destroys the greed in every case...
of course, we are not living in rational times, so, who knows what the actual (bad) outcome might be...
also, tattoos are stupid:
i have NEVER in my life looked at someone and said to myself: you know, they would look a lot better/cooler/sexier/whatever if they had some idiotic tattoos all over them... NEVER...
conversely, -with only 1 or 2 exceptions i saw in books- i have NEVER looked at a tattooed person, and said, 'wow, that is so-o-o-o hot/cool/tough/nice/attractive/whatever, wish i had a bunch of that stupid shit all over me...' NEVER
sure, you want a little rose over your boobie, go for it; a little dolphin on your butt, whatever; a barbed wire around your bicep, you da' man... but full sleeves of idiotic crap, stupid chinese symbols you don't even know what they mean, portrait of elvis, etc; just makes me think there is a 90-99% chance you are an idiot...
heavy makeup is stoopid, too... so are high heels, pantyhose, and tight jeans... to me, they just make people look awkward, foolish, and uncomfortable...
geez, why can't stupid sheeple be more like wonderful me ? ? ?
hee hee hee
art guerrilla
aka ann archy
eof
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Re: Re: Re: Re: Not legally a work for hire.
True. However (disclaimer, I have a couple of discreet tattoos) most people don't get tattoos to make themselves look cool. The psychology of body art is actually very interesting and worth study.
Most people get tattoos for a handful of reasons, none of which are aesthetic: to mark an important event in their life, to mark themselves as part of a group, to mark themselves as apart from a group, and for religious reasons, and a few others. "Looking cool" is a relatively rare reason.
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Until someone hits the jackpot with one of these lawsuits.
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As another commenter here pointed out, and as my research in this area suggests, the market for tattoos depends on credible assurances that clients can do what they please with their bodies and their tattoos. If clients had to worry about copyright permission every time they uploaded a photo of themselves to Facebook, demand for tattoos would almost certainly decrease. That's one reason tattoo industry culture discourages this sort of rent seeking.
And again, you need to distinguish between cases that make claims against for-profit ventures like video games and movies and cases that make claims against average clients for displaying and reproducing their tattoos. The first is very rare; the second is non-existent.
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Re: Seriously...
For a design created by the tattoo artist, the tattoo artist owns the copyright absent some assignment to the client. These are not works made for hire, and copyright assignments pretty much never happen.
The client certainly owns the copy of the design on his/her body, and that gives her some rights. Most importantly, it gives her the right to publicly display that particular copy.
But it doesn't give her the right, as a legal matter, to reproduce the design on t-shirts or coffee mugs or video games for that matter.
That result might be counterintuitive, and it might be a bad outcome, but pretending the law says something else isn't helping matters.
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Re: Re: Seriously...
I have two tattoos. One is of artwork I brought in. The tattoo artist took my design and copied it into my skin.
My other tattoo is of a single word in a standard font. I did not supply the artwork for this -- I just described it (the word, the font, the size, and the location). There was no creative input on the part of the tattoo artist.
Does the tattoo artist hold copyright on these two works merely because he operated the gun?
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a single word in a standard font / copyright on these two works
Let's walk through your first scenario.
1) You bring in original art, on a sheet of paper. There's a copyright in that art. If you drew it, you own it. Unless you've assigned it elsewhere or done it as work for hire. But maybe you didn't draw it, or maybe it's based on a copyright controlled by someone else. We'll assume it's yours, but the details matter.
2) The tattooist uses your piece of paper to make a stencil on their xerox machine. No copyright in that object -- it's fixed, but no originality. Legally, you've granted them an implied limited license to reproduce your art for the purposes of this tattoo. But the exact limits of these rights has been left legally undefined, and is in practice governed by the norms of the industry (cf the article linked above)
3) The tattooist then applies the stencil to your skin, and tattoos away. Again, for copyright law, the details matter (this is 2-D drawing transformed (depending on location) to 3-D object, and perhaps with minor stylistic changes and color changes.) Depending on these details, this act may involve enough creativity to be considered a new (derivative) work, with a separate set of copyright permissions.
4) If so, under this scenario, that resultant copyright is controlled by the tattooist, under your license. And that tattooist has in turn, granted you an implied license to use and display that tattoo. But again, the exact limits are, in practice, governed my industry norms.
Disclaimer -- PhD not JD, not legal advise, might be full of shit, get what you pay for.
As for your tattooed word -- at a glance, it sounds like there is no copyright in your description to the tattooist (verbally described == not fixed), probably there is no copyright in the word itself (not original enough), but there may be several in the expression of that word (the fonts, design choices, etc).
Similarly, if you have a large collection of tattoos, perhaps by different artists, deliberately chosen and positioned to work as a larger unified collection, there may be a huge stack -- a little pile of copyrights for each individual element, plus one for the compilation.
It's stupidly complex, and has been for far too long. Laypeople generally lose the plot on copyright matters in the late 19th century.
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Re:
It's probably a moot point now that THQ are in bankruptcy and so no patch will probably ever be released. But, THQ are stuck here really. If they removed the player, they might be sued for contract violation. If they remove the tattoo but not the player, they might also get sued as it's not an accurate likeness. If they keep it in, the tattoo artist sues.
It's just another example of how bad copyright has become, and how impossible it often is to follow the rules, even if you're doing your best to try. THQ had a perfectly good contract to have the fighter in their game, and they still get sued by someone who wants more.
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