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.



Reader Comments (rss)

(Flattened / Threaded)

  1.  
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    Anonymous Coward, Sep 16th, 2013 @ 11:52pm

    Copyright's best and brightest, ladies and gentlemen.

     

    reply to this | link to this | view in thread ]

  2.  
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    S. T. Stone, Sep 16th, 2013 @ 11:56pm

    Re:

    Nah, thatís Prenda Law.

    With the Carreons coming in close second.

    And OOTB in scoring position.

    Ödammit there goes my baseball metaphors again.

     

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  3.  
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    Capt ICE Enforcer, Sep 16th, 2013 @ 11:59pm

    License

    The only appropriate thing I can do, charge one hundred million ka-gillion-zillion dollars to see my tattoo. Yep maybe even a subscription plan... Damn I am brilliant.

     

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  4.  
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    That Anonymous Coward (profile), Sep 17th, 2013 @ 12:27am

    And of course where we are today, in the middle of the insane as shit patch, has NOTHING to do with the music labels carving music up into 4 notes not infringing 5 notes you owe us big bucks for the sample.

    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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  5.  
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    Anonymous Coward, Sep 17th, 2013 @ 12:32am

    Re: Re:

    They just hate it when due process is enforced.

     

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  6.  
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    Tom, Sep 17th, 2013 @ 1:13am

    Re: Not legally a work for hire.

    To qualify as work for hire, all parties would have had to agree in writing to the designation. If that was the case, it would have been easy for the person who commissioned the tattoo to stop the lawsuit.

    "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. ß 101)" See https://en.wikipedia.org/wiki/Work_for_hire#Employer.E2.80.93employee_relationship_under_agency_law

     

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  7.  
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    Anonymous Coward, Sep 17th, 2013 @ 1:22am

    Re: Re: Not legally a work for hire.

    a work specially ordered or commissioned for use as a contribution to a collective work

    That would include most tattoos as they are collected on a persons skin.

     

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  8.  
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    That One Guy (profile), Sep 17th, 2013 @ 1:49am

    Re: Re: Not legally a work for hire.

    Still trying to wrap my head around how screwed up copyright law has gotten that you'd need a written contract to make it clear that a person owns the image tattooed on their own skin...

    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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  9.  
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    Androgynous Cowherd, Sep 17th, 2013 @ 1:57am

    Fair use

    Since getting a picture of a person that has a tattoo is not a substitute for getting the tattoo, and since such a picture may in fact serve to advertise said tattoo, it seems that the fourth factor strongly favors a finding that incidental appearance of arguably-copyrighted tattoos in depictions of people that have said tattoos constitutes a fair use of said arguable copyright. Also, a truthful depiction of someone as having a given tattoo seems like it might fall on the "fact" side of the fact/expression dichotomy to boot.

    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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  10.  
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    Ninja (profile), Sep 17th, 2013 @ 4:45am

    If I were the company owner and the company didn't go bankrupt (yay fort copyright headshot?) I'd simply release a patch removing the guy from the game along with a notice on the credits that he was removed due to a dispute on his tattoo. No seriously, assholes like this are better left in obscurity.

     

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  11.  
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    Aaron Perzanowski, Sep 17th, 2013 @ 5:28am

    I'm going to repeat the comment I posted on the NFL tattoo post, lest anyone interpret these cases as anything other than extreme outliers:

    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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  12.  
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    jackn, Sep 17th, 2013 @ 6:09am

    I guess I will always get my tatoo artist to sign and acknowledge work for hire status. Uh... duh....

     

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  13.  
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    Anonymous Coward, Sep 17th, 2013 @ 6:14am

    Yo Momma / Prenda Steel

    And as for:
    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.

    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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  14.  
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    Aaron Perzanowski, Sep 17th, 2013 @ 6:19am

    Re:

    To give some sense of the prevailing attitude on this question, here's an excerpt from one of the interviews I conducted in my research. It's representative of what pretty much every tattooer told me about how they view clients' control over their tattoos:

    "Itís not mine anymore. You own that, you own your body. I donít own that anymore. I own the image, because I have [the drawing] taped up on my wall and I took a picture of it. Thatís as far as my ownership goes. [Claiming control over the clientís use of tattoo] is ridiculous. That goes against everything that tattooing is. A tattoo is an affirmation that it is your body, Ö that you own your own self, because youíll put whatever you want on your own body. For somebody else to say, 'Oh no, I own part of that. Thatís my arm.' No, itís not your fucking arm, itís 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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  15.  
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    Anonymous Coward, Sep 17th, 2013 @ 7:55am

    Right now we're experiencing a boom in the tattoo industry: everyone wants a tattoo and can get one at one of the many strip-mall tattoo parlors in every city or town, in no small part because famous people get tattoos and make them "cool". If the next crop of up-and-coming famous folk decide that getting a tattoo is uncool or can impact on their ability to sell their famous image, they're going to stop getting tattoos and tattoos will become that sad and vaguely creepy thing that oldsters have on their wrinkly bodies that used to be a cool thing when they were young. The tattoo industry will experience a bust.

    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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  16.  
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    Pat, Sep 17th, 2013 @ 8:18am

    Seriously...

    By his rational, tattoo artists all over the world are owed BILLIONS from the proceeds of the NBA, the NFL, MLB, the UFC, the WBA and WBC and also every single magazine publication showing any pictures of athletes without a shirt on...

    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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  17.  
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    Lazere, Sep 17th, 2013 @ 9:16am

    Re:

    To be fair, it isn't the MMA fighter they're having a problem with. Everything was fine with that guy. I don't think he should be punished because he had a dickhead tattoo artist one time...

     

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  18.  
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    James Burkhardt (profile), Sep 17th, 2013 @ 9:46am

    Re: Re: Not legally a work for hire.

    As I have told you, my body is a collective work. I might have 10 tattoo artists on my skin, and not one of them has to sign approval before I have an 11th add more ink to my skin, THerefore, it is a de facto collective work that the tattoo artists recognize is going to be collective.

     

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  19.  
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    Anonymous Coward, Sep 17th, 2013 @ 9:56am

    Re:

    Alternatively, any other ruling would make it universal to sign away that notional right to the customer.

    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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  20.  
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    V, Sep 17th, 2013 @ 9:56am

    Re: Re: Not legally a work for hire.

    I would think that tattoos would actually fall under the first part, i.e.

    "(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.

     

    reply to this | link to this | view in thread ]

  21.  
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    art guerrilla (profile), Sep 17th, 2013 @ 11:00am

    Re: Re: Re: Not legally a work for hire.

    *just* before i read this series of posts, it occurred to me, that *OF COURSE* it is 'work for hire' (*regardless* of the legal qualifications)...

    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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  22.  
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    John Fenderson (profile), Sep 17th, 2013 @ 11:28am

    Re: Re: Re: Re: Not legally a work for hire.

    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...


    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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  23.  
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    Atkray (profile), Sep 17th, 2013 @ 11:33am

    Re: Re:

    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

    Until someone hits the jackpot with one of these lawsuits.

     

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  24.  
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    Aaron Perzanowski, Sep 17th, 2013 @ 12:17pm

    Re: Re: Re:

    No, I don't think so.

    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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  25.  
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    Aaron Perzanowski, Sep 17th, 2013 @ 12:26pm

    Re: Seriously...

    There's an appealing simplicity to this way of thinking. Maybe that's what the law should be, but it simply isn't what the law says.

    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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  26.  
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    John Fenderson (profile), Sep 17th, 2013 @ 12:32pm

    Re: Re: Seriously...

    But what is the tattoo artist did not develop the design, but merely inked it on the skin? And what about unadorned words?

    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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  27.  
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    Anonymous Coward, Sep 17th, 2013 @ 4:59pm

    a single word in a standard font / copyright on these two works

    As usual with copyright, it depends. The details always matter. But in general terms, recall that in the US, there are two fundamental requirements -- some tiny level of originality, and fixing the expression. But what complicates things is that there may not be a single copyright here -- there is likely to be a stack of copyrights, some derived from and/or transforming the other works. Furthermore, each copyright consists of a bundle of related rights, which may be parceled out into smaller bits.

    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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  28.  
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    PaulT (profile), Sep 18th, 2013 @ 1:39am

    Re:

    But that would probably violate their contract with the fighter. Remember, it's the tattoo artist they're having a problem with, not the guy whose body the tattoo is on.

    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.

     

    reply to this | link to this | view in thread ]


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