Tattoo Artist Sues THQ for Copyright Infringement

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i love all these stories cropping up of indisputably asinine copyright infringement violations. each one brings mob mentality one step closer to the truth of the matter. it's not time yet, but i'll continue to wait, smiling in the shadows for that great revelation of our time. >:)

So if a plastic surgeon used a specific technique particular to themselves in performing surgery on a celebrity, and that celebrity's digital likeness appeared in a game, would they have similar recourse?

Frankly, I think this is bull@#$%. Unless the artist can convincingly argue that someone could actually recreate the tattoo from the digital image- and do so better than they could from any number of photographs of the actual fighter, which he has apparently chosen to take a pass on- I would throw it out, and possibly seek frivolous lawsuit penalties.

When you tattoo someone, that tattoo becomes part of their body. It doesn't instill in you the right to control what they do with their body. If you can't accept that, you should take up a different form of art.

It's more than a little frustrating that THQ's best course is likely to be to settle, given the risks and their own dire financial situation (which those bringing this case may be well aware of.) The artist deserves to have his ass handed to him.

THQ is already not doing hot, and now hacks come out of the woodwork for lawsuits?

I would be surprised if this even got settled out of court. I would think that they would have had to solely use his tattoo outside the likeness of the fighter who has it, which they did not. But, we'll see what happens. I mean, it would probably work in THQ's favor to prolong this till they are out of hot water or bankrupt.

What should have happened: *gasp* They included the tattoo I made! Awesome!

Reality: WHAT!? Give people incentive to want to be MY customers and potentially give me MORE money!? Not on your life! You're getting sued!

Note to self: become tattoo artist and work with famous people for cheap (or free). Then every time I see their image I'll look for the tattoo. If I see it, I'll sue whoever created that image.

RhombusHatesYou:
...although I think Escobedo is the tattoo artist and Condit UFC fighter...

You are correct, my bad.

I'll bet if I hop over to DeviantArt I'll find a few threads going about "how dare they infringe that artists copyright!" I bring DA up specifically because this happens all the time with people taking tattoo designs and getting them done without permission.

One particular case jumps to mind from about 8 years ago. An artist (that is no longer on DA and whose name I've long since forgot) of some repute tossed up a really nice back piece he designed, specifically stating that he'd go, and I quote, "legal apeshit" if he saw someone with it tattooed on them without his permission. Less than a week later, someone uploaded an image of the finished piece, captioned with "see you in court".

Artist sued the guy, case was thrown out. Judge stated that he wasn't convinced this constituted a copyright violation, as such laws normally make allowances for personal, non-commercial use and, further, there were no specific laws governing tattoos aside from the normal "you must be 18+ to get one" thing.

TrilbyWill:

Generic_Dave:
What about people who design their own tattoos then? I have several friends who drew their own tattoos and then a tattoo artist put them on their body.

Then the tattoo artist has no claim to it.
But imagine if some guy drew a really awesome picture. And then someone recreated it in a game without asking the original artist for permission to do so.

thats how internet works.

Given that in order to represent the fighter accurately requires the image of the tattoo, I'm not sure where the artist has a leg to stand on. If it was on another person's image, if it was printed on a wall, if it was drawn independently of Condit in any medium, then yes, clearly there is a copyright issue. But not in the case of making an accurate reproduction of the actual person. One hopes that common sense will rule in this case.

It depends entirely if the artists design was part of a copyrighted portfolio or a custom work the fighter had done. If it's part of the artists portfolio, and he had the ink done based on it, then, yes, the artist owns the copyright. If the fighter commissioned the artist for a new image, that's work for hire and the copyright belongs to the fighter.

snekadid:
This can't fall under copyright law since that specifies that the artist owns part of the persons body because of the image and has rights to it for the existence of the tattoo

No, it actually doesn't. There is no issue, for example, with the tattoo showing up in televised matches.

what they're doing here is literally reproduce it.

Callate:
So if a plastic surgeon used a specific technique particular to themselves in performing surgery on a celebrity, and that celebrity's digital likeness appeared in a game, would they have similar recourse?

One cannot copyright a technique.

When you tattoo someone, that tattoo becomes part of their body. It doesn't instill in you the right to control what they do with their body.

Good thing that literally nobody is saying otherwise.

Souplex:
THQ is already not doing hot, and now hacks come out of the woodwork for lawsuits?

They're having tough times? Gee, that's too bad, but so what?

So a lot of things to clarify here (because I don't know enough to shut up when the internet is mad by perceived faults in the legal system)
1)A suit here does not mean that Escobedo is not also suing Condit. Or that they haven't already made an agreement. Or any of a number of possible situations. One act can create multiple law suits and it is at the discretion of the plaintiff who gets sued when and how. And the suit against Condit is hardly likely to make news here.
2)THQ is a big business. They probably have an in house attorney. They aren't going to go broke because they have to defend themselves from a law suit.
3)THQ being near bankrupt doesn't absolve them from liability. If they screwed up and didn't get legal permission, that is their fault. This is why you hire lawyers.
4)Copyright law is an entangled mess that is its own specialization in the legal world. I am not a specialist in intellectual property, nor do I really know anything about property law. I can take guesses at laws, but none of it really matters. I would imagine that since you are talking about an image derived from another person's image that was paid for, damages would be calculated as a percentage of the amount paid for the original image. But again, not an expert in property law.

SanAndreasSmoke:
...Really? COME ON legal system! It's not like THQ was actually aware they were committing copyright infringement, wringing their hands and laughing fiendishly while they forced the developers to include the damn tattoo. 'Cuase that's REALLY going to draw in the crowds, right?

Whatever you may think of THQ as a publisher, it's sad this is happening to them in their current financial state. Pretty pathetic.

Why couldn't Escobedo be more like that guy whose art was illegally lifted to make the Borderlands 2 reverse cover? That guy was pretty much flattered they used his work (although disappointed they didn't ask him first) and didn't press charges. And because he was so chill about it, Pitchford called him up, and I assume paid him some cash for compensation. That's how it's done.

My understanding is that this could be very damaging for the original artist. Once you fail to defend your copyright it makes it harder for the original artist to defend against further violation. Also, if you put your time and effort, why should you just sit back and let your copy right be taken advantage of while some one tramples your ownership of an image for their financial benefit. You own it and someone else if profiting from your work, the Borderlands artist can do want he wants but i think he could be hurt by this.

Now the tattoo thing maybe different because it becomes part of the wearer's own image.

TheSYLOH:
Silly Artists!
Don't you know that only multi-national corporations can use copyright law to their advantage. And here you are thinking that they can help protect your rights as an artist.

Be fair, this seems more like an abuse of copyright law. Or does this tattoo artist ask for royalties whenever Carlos Condit is photographed without his shirt on? Seems insane if it's copyright infringement to sell a picture of yourself, just because you have a tattoo.

Chris Mosher:

SanAndreasSmoke:
...Really? COME ON legal system! It's not like THQ was actually aware they were committing copyright infringement, wringing their hands and laughing fiendishly while they forced the developers to include the damn tattoo. 'Cuase that's REALLY going to draw in the crowds, right?

Whatever you may think of THQ as a publisher, it's sad this is happening to them in their current financial state. Pretty pathetic.

Why couldn't Escobedo be more like that guy whose art was illegally lifted to make the Borderlands 2 reverse cover? That guy was pretty much flattered they used his work (although disappointed they didn't ask him first) and didn't press charges. And because he was so chill about it, Pitchford called him up, and I assume paid him some cash for compensation. That's how it's done.

My understanding is that this could be very damaging for the original artist. Once you fail to defend your copyright it makes it harder for the original artist to defend against further violation. Also, if you put your time and effort, why should you just sit back and let your copy right be taken advantage of while some one tramples your ownership of an image for their financial benefit. You own it and someone else if profiting from your work, the Borderlands artist can do want he wants but i think he could be hurt by this.

Now the tattoo thing maybe different because it becomes part of the wearer's own image.

Yeah, I see what you mean and I agree. I didn't mean to make it sound like no artist should take claim to their work if it's infringed. In fact, if the Borderlands 2 guy HAD pressed charges I would have been totally on his side. The lift was pretty blatant.

I just meant that when compared to how the Borderlands guy handled an infringement that was actually a justifiable reason to sue, Escobedo seems a wee bit entitled to me.

Fanghawk:
Escobedo is asking the courts for all profits associated with the tattoo's use

So, fuck all?

There's no problem here. This guy's just an opportunist. Can't blame him, really. If the law tells you there's a problem with something that you could benefit from of course you're gonna try cashing in on it.

SanAndreasSmoke:

-snip-

Yeah, I see what you mean and I agree. I didn't mean to make it sound like no artist should take claim to their work if it's infringed. In fact, if the Borderlands 2 guy HAD pressed charges I would have been totally on his side. The lift was pretty blatant.

I just meant that when compared to how the Borderlands guy handled an infringement that was actually a justifiable reason to sue, Escobedo seems a wee bit entitled to me.

I figured that's what you meant and that's why I was bit more apprehensive about Escobedo, but I may be from Harlan Ellison school of thought on creative works. Which give nothing away for free, they will only expect more for free.

Now for Escobedo, I think its a bit dicey, I am a bit of a legal nerd so seeing who owns the copyright to such things is actually fascinating.

I kinda get where they're coming from. I mean, everyone knows UFC Undisputed is a Tattoo simulator. The money lost for this tattoo shop must be in the billions.

Honestly, is there a single soul who still thinks the copyright system is actually working these days? Theres way fewer "support the creator" then there is "endless cash crab" at this point.

Slycne:

J Tyran:
So go by this logic they can sue the UFC for the TV airing and selling the DVDs of his fights?

What it looks like from other cases is that there is an understood agreement between the client and tattoo artist that their work will be filmed, photographed and such, especially when the client is famous.

THQ however recreated the image, which is where the whole thing gets murky.

Not really though. I mean, the first laws of ownership were based on the concept that one can not own anything but one's own body and the work one can excercise with that body. Basically, no one but Condit has any right to the earnings made using his likeness. Now I'm not a lawyer, and this is simply based on a college philosophy class. Anyway, this seems pretty simple to me, THQ presumably signed a contract with Condit for the use of his likeness. The tattoo is part of his likeness, and thus included in said contract. And anyway, it's a tattoo of a tiger, one of the most common images in tattooing, and I don't see this going anywhere but in the judge's trash bin. On a related note, I'd not be very pleased if I allowed someone to use my likeness for whatever, and then the tattoo artist that made mine came and wanted cash for it as well, and my most visible tattoo is a hell of a lot rarer than a tiger. Not very pleased at all.

Captcha: roll over. Seems captcha disagrees with me.

Sure give him $1,000 and call it a day. No one bought it to look at his tattoo.

chozo_hybrid:
The tattoo artist already was compensated when the fighter paid him to draw what he wanted on him.

This is why I don't totally buy that the artist does own the rights to the work to be honest. When you pay a tattoo artist for a tattoo, you are basically commissioning artwork from them. You have paid them to create this work, and I don't think it's unreasonable to argue that the client then owns that work, not the artist. Just as if a developer pays its employees or an outside contractor to do design work on a game, the developer owns the work, not the employee or contractor. The two situations are in essence very similar which is why this suit sounds like bullshit to me. Maybe there's some law I don't know about which governs the copyright of tattoos though. If there is something on the books which makes his complaint legally valid then I'm not sure I agree with it.

The man was paid to make some artwork. He made said artwork. He's already been compensated and I don't think he should be able to claim ownership of it. Certainly not in the case of recreating a persons likeness in a game. At the very least, he should be directing his lawsuit at the people who licensed that likeness to THQ, not THQ themselves. They obtained those rights in good faith. If the fighter didn't have the right to sell rights to that aspect of his likeness then he should be the one taken to court.

Vivi22:

This is why I don't totally buy that the artist does own the rights to the work to be honest. When you pay a tattoo artist for a tattoo, you are basically commissioning artwork from them. You have paid them to create this work, and I don't think it's unreasonable to argue that the client then owns that work, not the artist.

See my earlier post. If the tattoo artist made this tat uniquely for this customer, then yes. However, many tattoo artists have copyrighted portfolios of tattoo designs that they've created which you can pick out of the book.

In the event of the former, you're correct. In the event that he just picked the design out of the book, then, no, the artist retains copyright.

Xukog:
Wait...Why exactly is this worth suing over? The guy has a tattoo on him,so they have it in the game. What exactly is the problem here?

Because $$$Ka-CHING!$$$

That's why. He's seen an opportunity to screw someone out of some money, and by f**k is he going to squeeze for all it's worth!

[captcha: take it all]
Once again Captcha, you keep acing that Turing test.

Zachary Amaranth:
One cannot copyright a technique.

This is where you helpfully fill in why a tattoo should be considered significantly different from a cosmetic alteration to make the comment relevant.

Good thing that literally nobody is saying otherwise.

...Except the person filing the lawsuit, who seems to be pretty explicitly stating by way of said lawsuit that the person who got their tattoo cannot license anyone else to make an accurate digital representation of themselves which by nature of that accuracy would include the tattoo.

Is such a licensing "not something you do with your body"? Because that doesn't seem like the kind of obvious point that warrants clobbering someone over the head and congratulating yourself over.

Callate:

This is where you helpfully fill in why a tattoo should be considered significantly different from a cosmetic alteration to make the comment relevant.

I made a statement about what is under law. Why should I delve into the realm of what "should" be, when you were simply asking what the surgeon's recourse would be?

I answered your question. If you want my opinion, the answer is "I don't really care. However, you asked about legal recourse, and I know what it is, so I answered."

...Except the person filing the lawsuit, who seems to be pretty explicitly stating by way of said lawsuit that the person who got their tattoo cannot license anyone else to make an accurate digital representation of themselves which by nature of that accuracy would include the tattoo.

"Seems to be" and "explicitly" both as qualifiers. You "seem to be" filling in blanks here, treating them like they're obvious, and then having a cow that someone disagrees because it's untrue at face value.

Is such a licensing "not something you do with your body"?

Your physical likeness doesn't inherently include tattoos. And honestly, this isn't without precedent. Games often drop trademarked logos from people's tats because of replication issues, whereas they can be displayed on live, commercial television without issue. This is the same thing from a copyright perspective.

"likeness," in most cases, does not count tattoos, I'm sorry to say.

Because that doesn't seem like the kind of obvious point that warrants clobbering someone over the head and congratulating yourself over.

I'm not even sure where you're going, there, but it seems rather presumptuous.

Chris Mosher:

My understanding is that this could be very damaging for the original artist. Once you fail to defend your copyright it makes it harder for the original artist to defend against further violation.

That's trademark and patent law, not copyright.

Just to clarify.

SanAndreasSmoke:
...Really? COME ON legal system! It's not like THQ was actually aware they were committing copyright infringement, wringing their hands and laughing fiendishly while they forced the developers to include the damn tattoo.

THQ should, having a legal department the size of Jersey, be aware that we are an implicit copyright nation.

chozo_hybrid:
The tattoo artist already was compensated when the fighter paid him to draw what he wanted on him.

That doesn't remove his rights.

chozo_hybrid:

Is he suing the sponsors and this show he appears on etc, what about the networks that the fighting is shown on?

They're not recreating it. This is the same reason CM Punk or the Hurricane aren't sued every time they show up in Pro Wrasstlin.

Vivi22:

This is why I don't totally buy that the artist does own the rights to the work to be honest. When you pay a tattoo artist for a tattoo, you are basically commissioning artwork from them.

Except a commission doesn't transfer copyright. So what you're saying is that, essentially, you don't buy their rights to their work because you don't understand how commissioning works?

If you commission physical art, the physical property is there to do with as you please. You can resell, trade, give or burn it if you wish. You do not get the right to reprint it, though.

You can commission something and either license the work or effectively buy the copyright, but neither of those are default.

Zachary Amaranth:

snekadid:
This can't fall under copyright law since that specifies that the artist owns part of the persons body because of the image and has rights to it for the existence of the tattoo

No, it actually doesn't. There is no issue, for example, with the tattoo showing up in televised matches.

what they're doing here is literally reproduce it.

God i wish you people would read the post before cutting it up to try and make your response not pathetic.

The tattoo is part of his IMAGE, a very well defined under the law property that belongs to the fighter and being part of his IMAGE is exempt from the artists copyright control due to willing placing it on him. The tattoo is not placed anywhere else, is not usable on other characters as a decal and is only ever used on the character that is the representation of the fighter that the tattoo is legally on. There is no case unless the artist is trying to say he owns another persons image rights and that will only lead to trouble for the artist.

snekadid:

God i wish you people would read the post before cutting it up to try and make your response not pathetic.

The tattoo is part of his IMAGE, a very well defined under the law property that belongs to the fighter and being part of his IMAGE is exempt from the artists copyright control due to willing placing it on him. The tattoo is not placed anywhere else, is not usable on other characters as a decal and is only ever used on the character that is the representation of the fighter that the tattoo is legally on. There is no case unless the artist is trying to say he owns another persons image rights and that will only lead to trouble for the artist.

I'd buy that except for the fact that companies like Disney have repeatedly won this case against people with tattoos of, say, Micky Mouse. They don't (usually) require you to get it removed, but they can require it be covered during paid performances/games/events, etc.

Further, there may be the issue of the terms of the contract between the fighter, and UFC, who licensed THQ their rights. THQ may have gone beyond the letter of the granted rights that UFC had acquired from the fighter. Or the tattoo artist may have had an agreement that the rights to the tat were nontransferable.

Zachary Amaranth:
I made a statement about what is under law. Why should I delve into the realm of what "should" be, when you were simply asking what the surgeon's recourse would be?

...Unless I was drawing a rhetorical parallel to a similar situation to highlight the question of why such a thing should be permitted, rather than actually asking a literal question about legal recourse.

You made the assumption that I was delegating a question to a matter of your experience. I was not. And even on the matter of legalities, given that surgical techniques can be patented and the software used in surgery can be copyrighted (and possibly lead to questions of derivative works), it's not an irrelevant parallel.

"Seems to be" and "explicitly" both as qualifiers. You "seem to be" filling in blanks here, treating them like they're obvious, and then having a cow that someone disagrees because it's untrue at face value.

"Seems to be" and "explicitly" might also be regarded as an invitation to provide some basis for why how something appears is not the case.

Your physical likeness doesn't inherently include tattoos. And honestly, this isn't without precedent. Games often drop trademarked logos from people's tats because of replication issues, whereas they can be displayed on live, commercial television without issue. This is the same thing from a copyright perspective.

"likeness," in most cases, does not count tattoos, I'm sorry to say.

This is useful information. Thank you for providing it.

I'm not even sure where you're going, there, but it seems rather presumptuous.

Because from where I stand, your original response was unhelpfully curt, excessively hostile, needlessly dismissive, condescending, and, to borrow a phrase, "presumptuous".

Perhaps this was not your intention. There's certainly reason to consider that intentions on both sides were mis-read. When you write something like "no one is saying otherwise"- which, again, is not a statement without controversy- that comes across as hostile and dismissive, to the point where it becomes a genuine act of faith to actually manufacture a response rather than write your presence off as a net negative and hit the "ignore" button.

And because there seems to be some mis-communication going on here, let me be very, very blunt. That "intentions on both sides were misread" sentence? That's known as "offering an out"; it's considered a polite way people allow everyone to take a step back without losing face.

BaronIveagh:

snekadid:

God i wish you people would read the post before cutting it up to try and make your response not pathetic.

The tattoo is part of his IMAGE, a very well defined under the law property that belongs to the fighter and being part of his IMAGE is exempt from the artists copyright control due to willing placing it on him. The tattoo is not placed anywhere else, is not usable on other characters as a decal and is only ever used on the character that is the representation of the fighter that the tattoo is legally on. There is no case unless the artist is trying to say he owns another persons image rights and that will only lead to trouble for the artist.

I'd buy that except for the fact that companies like Disney have repeatedly won this case against people with tattoos of, say, Micky Mouse. They don't (usually) require you to get it removed, but they can require it be covered during paid performances/games/events, etc.

Further, there may be the issue of the terms of the contract between the fighter, and UFC, who licensed THQ their rights. THQ may have gone beyond the letter of the granted rights that UFC had acquired from the fighter. Or the tattoo artist may have had an agreement that the rights to the tat were nontransferable.

Except Disney did not tattoo or give permissions to have the image tattooed on those people and thus maintained their copyright in those cases, the artist did it willingly and himself, thus giving permissions and thus giving up all rights to the image as it relates to the persons image and likeness rights.

snekadid:

The tattoo is part of his IMAGE, a very well defined under the law property that belongs to the fighter and being part of his IMAGE is exempt from the artists copyright control due to willing placing it on him.

Legally false, which you would understand if you would actually read what I said instead of accusations and name-calling.

Now this might be some faulty logic, but let me try to break this down.

A UFC fighter goes to a Tattoo Artist.

Said Fighter PAYS a Tattoo Artist for a tattoo.

If the UFC fighter paid for the tattoo, that means that he bought the tattoo, which conversely means that the artist sold the tattoo and thus no longer has any claim to its image at least as far as it applies to being on the fighter's body.

Seems to me that the tattoo artist has absolutely no grounds to stand on, seeing as how the fighter gave permission for his likeness to be used in the game, and that tattoo - having been sold to him by the artist - is part of his likeness.

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