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General discussion (archive)Tattoo copyright insanity...(83 posts)(83 posts)
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This is my favourite topic
Posted November 27, 2012
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Wishbone: Plausibility means that it cannot be dismissed out of hand. That is not the same as saying "this is a fact", which is what you've been doing all along. All it means is that it has to be tested in court to be dismissed. It may well be. So when you say "That is a violation of copyright", that is for the court to decide, not you. It may be a violation of copyright, but then again it may not. If the court decides it is covered by fair use, then there is in fact by definition no violation taking place, is that not so?
The only fact I brought fourth was that a tattoo can be copyrighted and that the plausibility is given. (And I gave examples to illustrate). Nothing else. Maybe I got lost somewhere along the line as people where bringing in 3D scanners....

And of course a judge has to decide if this is fair use. If this means no violation or a violation that has to be tolerated can be argued (but this is only of academic interest).

And plausibility (at least here) means more than that it cannot be dismissed out of hand. (Depending on what you mean by that, of course.) But plausibility includes actually checking up on the claim in the way that "what the claimant says is the truth".
Posted November 27, 2012
Would it be considered fair use if his tattoo depicted Super Mario or Micky Mouse? Not likely. I'm with the artist on this one.
Posted November 27, 2012
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SimonG: They recreated the tattoo for the game. That is a violation of copyright, as the copyright owner of the tattoo is the artist, not the guy who has it.

How that copyright violation was done is to prove by the claimant. He says he can do so, and if he can, which is plausible, so is the claim.
OK, this is just wrong.

How the copy is made is utterly utterly irrelevant. They could have broken into his tattoo parlour and traced the design from his book, it doesn't make any difference to the copyright status of the work.

It is not a recreation, it is a transformation. I cannot see a serious argument that a 3d human model and/or a video game are not transformative from a tattoo.

There is one legal issue here: Is this fair use? For the law and the definition of the 4 factor test, check out Title 17 of the US Code, and for case history check out Folsom v. Marsh and Blanch v. Koom to start with.

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SimonG: For the record: Plausibility of a claim means that if the facts brought forward by the claimant remain unchallenged, the claim is valid. And that is the case here. If they recreated an exact replica of this copyrighted artwork, which can be a tattoo, he has a claim. And defence statements and funny "what if scenarios" are not part of the plausibility.
Sorry, but even assuming everything in the claim goes completely unchallenged it fails, because the claim acknowledges that the replica is part of the model and the game and therefore transformative. The art is of a highly public and visible nature, and it is a prominent identifying feature of Costin. None of this is in dispute. The only factor that doesn't go against the artist even taking everything in his claim as gospel is the effect upon work's value - the least heavily weighted and hardest to prove.
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Darling_Jimmy: Would it be considered fair use if his tattoo depicted Super Mario or Micky Mouse? Not likely. I'm with the artist on this one.
Would he have the right to Mickey Mouse? No. Would he have the right to use a version image as part of an accurate depiction of himself in an artistic form? Yes. Otherwise anyone who got a tattoo could not be represented in any form of art.
Post edited November 27, 2012 by jgresham
Posted November 27, 2012
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jgresham: It is not a recreation, it is a transformation. I cannot see a serious argument that a 3d human model and/or a video game are not transformative from a tattoo.
That is exactly where you are differing from the claimant. (I guess, I only have the article to go by).

It is the design that counts, not the tattoo. If they use the design depicted on the tattoo and started selling it as posters, it would still be a copyright violation.
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jgresham: There is one legal issue here: Is this fair use? For the law and the definition of the 4 factor test, check out Title 17 of the US Code, and for case history check out Folsom v. Marsh and Blanch v. Koom to start with.
You do know that you are contradicting yourself, right? Fair use is only relevant if a copyright violation is present. Which you say isn't. Without copyright violation, no need for fair use.

Anyway, I'm done discussing this (now for the second time).
Post edited November 27, 2012 by SimonG
Posted November 27, 2012
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jgresham: anyone who got a tattoo could not be represented in any form of art.
Sure, they could:

1. Wear clothes,
2. Obtain a license to create derivative works, or
3. Wait for the copyright to expire*


*The copyright term being fucking insane in the US is another matter in itself.
Posted November 27, 2012
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jgresham: anyone who got a tattoo could not be represented in any form of art.
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Darling_Jimmy: Sure, they could:

1. Wear clothes,
2. Obtain a license to create derivative works, or
3. Wait for the copyright to expire*


*The copyright term being fucking insane in the US is another matter in itself.
This actually is the best I could find on short notice on the issue. The last paragraph is especially interesting. (Even I didn't knew it went so far)

http://www.prweb.com/releases/2012/11/prweb10144896.htm
Posted November 27, 2012
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jgresham: It is not a recreation, it is a transformation. I cannot see a serious argument that a 3d human model and/or a video game are not transformative from a tattoo.
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SimonG: That is exactly where you are differing from the claimant. (I guess, I only have the article to go by).

It is the design that counts, not the tattoo. If they use the design depicted on the tattoo and started selling it as posters, it would still be a copyright violation.
See, now there you are very likely correct. But the reason it would probably not be fair use is that it doesn't pass the 4 factors.

It is almost completley untransformative, simply moving the design to paper from skin. His art makes up the entire creative aspect of the new work, rather than a tiny fraction of it. And a claim that he could sell posters based on his art is a helluva lot stronger than money lost based on tattoo themed video game sales.

See? That right there is the point of fair use! It doesn't allow you to simply take others work as your own, but does allow it to make contributions to genuine new works.
Posted November 27, 2012
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jgresham: anyone who got a tattoo could not be represented in any form of art.
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Darling_Jimmy: Sure, they could:

1. Wear clothes,
What about the designer who made the clothes?
Posted November 27, 2012
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Wishbone: What about the designer who made the clothes?
See points 2 and 3.
Posted November 27, 2012
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Darling_Jimmy: Sure, they could:

1. Wear clothes,
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Wishbone: What about the designer who made the clothes?
Clothing and the like aren't subject to copyright in the US. That's why you can get knockoffs of Gucci handbags, watches, and designer clothes. They're completely legal as long as they don't copy any of the logos. (Though that would be a trademark violation, not a copyright one.)
Posted November 27, 2012
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Wishbone: What about the designer who made the clothes?
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Darling_Jimmy: See points 2 and 3.
See, given the length of time copyright lasts, point 3 is not really applicable.

About point 2... If I make a documentary about some interesting person, do I then have to track down and contact the designer of each and every article of clothing the documentary shows him wearing, and obtain their permission to use the footage? Can we please agree that this is insane? If this was the case, movies and television wouldn't exist.
Posted November 27, 2012
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Darling_Jimmy: See points 2 and 3.
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Wishbone: See, given the length of time copyright lasts, point 3 is not really applicable.

About point 2... If I make a documentary about some interesting person, do I then have to track down and contact the designer of each and every article of clothing the documentary shows him wearing, and obtain their permission to use the footage? Can we please agree that this is insane? If this was the case, movies and television wouldn't exist.
Nope. Transformative work again. A documentary is not a t-shirt. In fact, even if the documentary was about the design of the t-shirt you would still be good.
Posted November 27, 2012
It's common sense that when you apply your art to another person's body you're forfeiting some of your rights to that art. Not the right to produce that same artwork again in future, or even the right to stop other tattoo artists producing direct copies, but certainly the rights to that particular piece on that person.

But then common sense and law... it's like pin the tail on the donkey really.
Post edited November 27, 2012 by Navagon
Posted November 27, 2012
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SimonG: If you create an awesome piece of art, you should be credited for it. And you should be the only one who can make money of it.

It's like saying "because I bought the book I bought the story".
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StingingVelvet: Credited for it sure, but compensated? How far does this extent? Pictures of people?

When your art becomes a part of someone's body you lose control of it, plain and simple.
This is actually changing in many industries, it used to be extremely rare to own the copyrights on your own wedding photos without negotiating it and paying extra, if the copyright was even for sale then. These days that is a completely reasonable request and many photographers have that as their default method of doing business.
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Starmaker: Can go either way. A permanent tattoo is part of a person's likeness.
In the US, names and likenesses must be trademarked if you want protection on them. Typically only celebrities and sports stars do this (and a few political figures, it was considered a bit douchey when Palin did it).
Post edited November 27, 2012 by orcishgamer
Posted November 27, 2012
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jgresham: Nope. Transformative work again. A documentary is not a t-shirt. In fact, even if the documentary was about the design of the t-shirt you would still be good.
Nor is a computer game a tattoo.
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General discussion (archive)Tattoo copyright insanity...(83 posts)(83 posts)
(83 posts)