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Old 05 September 2013, 06:36 AM
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Judge Hey, Pro Athletes: Your Tattoo Is Going to Get You Sued

Four years ago, Christopher Escobedo, a tattoo artist in Phoenix, inked a large tattoo of a lion into the ribcage of a mixed martial arts fighter named Carlos Condit. A year later, the fighter and his lion tattoo appeared in the video game UFC Undisputed. Now the tattoo artist is suing the game’s maker, THQ, for copyright infringement. “It’s an exact replica of my art,” says Escobedo. “That’s like a $5,000 tattoo that I got no recognition for.”

http://www.businessweek.com/articles...o-get-you-sued
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Old 05 September 2013, 02:19 PM
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Whether the images of pro athletes can be used in video games without permission is a big issue in intellectual property law right now. Appeals Court Rules on Use of Athletes in Video Games.

Seaboe
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Old 05 September 2013, 02:41 PM
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Permission from who, though? I would have thought that any identifiable image of a famous person used for commercial purposes would already need permission from that person (or their estate), and permission would have to depend on any contracts with existing sponsors. It sort of surprises me that it might not - unless the games in your link only featured a fictional character that looked too much like the athlete who complained.

The OP is unusual because the athlete himself is probably quite happy, but the tattoo artist is claiming that he still owns image rights to the tattoo - which is now a part of the other person's body. It's more like an architect suing over a photograph of their building, which also happens occasionally.

But in this case it seems unlikely that the tattoo artist would be able to claim (intellectual) property rights over somebody else's body, so I predict he won't get far...
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Old 05 September 2013, 02:50 PM
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You'd think the issue would have come up (and have been settled) with the featured people in photos for tattoo magazines. I find it hard to believe that some of the more heavily tattooed people could remember, find, and get releases from every single tattoo artist that they had ever used.
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Old 05 September 2013, 04:35 PM
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But in the case of a magazine photograph, the tattoo being included in the photo is more or less incidental - whereas in the case of the video game, the tattoo is being recreated by a graphic artist. It isn't likely any artist would want another artist recreating their work, be it another tattoo artist or not.


Quote:
But in this case it seems unlikely that the tattoo artist would be able to claim (intellectual) property rights over somebody else's body, so I predict he won't get far...
He isn't. He's claiming IP on the image tattooed on the person's body. He seems to be treating the guy's body as nothing more than the canvass the image is painted on. A live canvass, to be sure, but still just the canvass.

~Psihala

Last edited by Psihala; 05 September 2013 at 04:50 PM.
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Old 05 September 2013, 05:16 PM
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I would say that a tattoo in a magazine about tattoos is a lot less incidental than a tattoo in a game about fighting would be. And in the video game, it is probably rendered from a photograph/video rather than being drawn by any artist.
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Old 05 September 2013, 05:17 PM
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Hmmm. So if I take a photo of someone with a tattoo, I'm cool, even if I publish the photo. But if I made a painting of someone and reproduced the tattoo, I'm not?

(Do tattoo specialty magazines credit the tattooists? The way fashion magazines will usually tell you who designed the outfit, and often give credits for hairstyle, makeup, and accessories? If so, then one would imagine tattoo artists would be reasonably pleased to have their work out there as publicity; if not, I could see some resentment...)

I can see it as a tricky issue, to be sure. It's sort of implied I think when you get a tattoo that you have the unlimited right to display it. Do you have the right to do so for profit, or would the artist have some right to compensation there? I don't imagine most tattoo artists sign any kind of release (or vice-versa) in this regard. And what about having it reproduced?

(On the other hand, I also have seen many people tattooed with copyrighted or trademarked images, and I doubt that either the tattoo artist or the person with the tattoo has gotten permission. Lots of people get tattoos featuring images of celebrities, and sometimes reproducing specific photos of said person. I know a guy who has a tattoo of the Superman logo - shouldn't the artist have to get permission from Time-Warner/DC for that? Or would that only be if s/he advertised that as one of the available options, whereas if the customer comes to him with an idea of image, it's OK? I suspect that this is all a legal grey area....)
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Old 05 September 2013, 05:50 PM
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Quote:
I know a guy who has a tattoo of the Superman logo - shouldn't the artist have to get permission from Time-Warner/DC for that?
As deviantArt's lawyer tried to explain at ComicCon last year, "It depends." Copyright law isn't black and white. In fact, he used an example of someone emblazoning the Batman logo across their chest in tattoo form as an example. There are instances where doing this might not violate the copyright that depend on a number of factors. He used medium as just one example in this case, in that you might be able to use the Batman image or logo if you did it in sculpture because Batman's intended medium is "print" (including film) and the artist did it for non-commercial use (fan art, in this case).

He was quick to point out, however, that even a little change to this scenario could have violated the copyright laws. In your example, it's probably illegal to pay a tattoo artist to tattoo the Superman logo on your chest... but whether it is ultimately determined to be legal or not, Time Warner/DC could pursue infringement no matter what because they own the copyright.

I doubt a tattoo magazine is going to cause much of a stir amongst tattoo artists. For one, I'm pretty sure the magazine knows what it can legally reproduce, and for another, the ones I've seen give credit to those who did the art. It's essentially free advertising and recognition for the artist. In something like a news magazine, the subject matter is generally the person who just happens to have a tattoo - not the tattoo itself (unless that is the subject of the piece, in which case the magazine probably will want to credit the artist). This apparently isn't the case with the video game in question.

~Psihala
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Old 05 September 2013, 06:40 PM
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Quote:
Originally Posted by Psihala View Post
As deviantArt's lawyer tried to explain at ComicCon last year, "It depends."
That's actually the answer to just about any legal question.

Seaboe
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Old 06 September 2013, 12:56 AM
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I would think that the very nature of the medium would dictate that the person being tattooed would own the rights to the image, as it is being made a part of their body. The commission of a tattoo (and we are presumably talking about an original, commissioned work, not a copy of an existing image/logo) would require that the artist create a unique design as requested by the person receiving the tattoo (tattooee?) with the understanding that this unique creation is to become part of the persons body.
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Old 06 September 2013, 07:07 PM
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Quote:
Originally Posted by popkulture View Post
I would think that the very nature of the medium would dictate that the person being tattooed would own the rights to the image, as it is being made a part of their body.
And if not, presumably the same protections would apply to hairstyles and cosmetic surgery.
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Old 06 September 2013, 07:13 PM
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I would think that the tattoo is 'work for hire' while the ability to reproduce the tattoo is intellectual property. The artists can put the same tattoo on as many people as he/she likes, but the tattoos themselves are solely owned by the people who wear them.
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Old 06 September 2013, 07:21 PM
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It seems like the cost of the tattoo itself should be reasonable compensation for the artist.

I suppose if somebody went to a tattoo artist and said "put an amazing, unique tattoo on me - I don't care what it is," and then made a career out of displaying this tattoo, then the artist should get some of that money, so it isn't clear-cut in general. But the game example doesn't seem like that - the tattoo artist says he didn't get "recognition" for his $5000 tattoo, but he did presumably get $5000 for it. And now people know who he is, as well. Perhaps he would have been satisfied with a credit in the game, but I can't see how he can successfully sue the athlete for this, since the tattoo isn't why the athlete was in the game. Or the game makers, for that matter. Does the artist get a credit every time the athlete appears on TV?

If somebody took a close-up photo showing only the tattoo, and made it into a poster or a print, and sold it, then again, I can see the artist perhaps wanting some compensation. But in general, he gets paid for putting tattoos on people. It's not like somebody is going to buy the game and say, "I was going to get a tiger tattoo from this guy, but now I have the game I'll just use that instead."

If his tattoos are distinctive enough that people seek him out in particular, then he should be able to charge a premium for that in the first place - and put some explicit conditions in place, if he wants to. But most tattoo art seems pretty generic to me, no matter how talented the artist.

Don't get me wrong, some of it's great, and the specific motifs and combinations must be meaningful to people who get them, but there are very few identifiable tattoo artists that I know of - and a lot of the more impressive tattoos that I've seen pictures of have been copies of existing artwork, or portraits. And the few really original tattoos I've seen pictures of have probably been the design of the person who has them, who just paid the tattoo artist to ink them. (One of the ones I mean is on the back of a poster here - I think it's her own design although I'm not sure. I've only seen pictures.)
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