The discreet tattoo every IPKat contributor gets upon joining the Kat team |
As IPKat readers will remember, this fascinating question was addressed in a number of posts [here, here, here, here, and here] last year.
Most of them were prompted by publication on Forbes of an article that reported rumours that the NFLPA [this is the organisation that represents professional American football players in the National Football League] has become increasingly concerned about potential copyright claims concerning its members' tattoos, and has started advising agents to tell their players that, when they get tattoos, they should get a release from the tattoo artist and, if they can track down their former artists, they should get a release as well.
Carlos Condit fighting in analogue ... |
As the IPKat reported, back in 2012 an Arizona-based tattoo artist named Chris Escobedo sued video game publisher THQ over the UFC Undisputed games.
As summarised by The Legal Satyricon, the plaintiff had tattooed a lion on US mixed martial fighter Carlos Condit’s rib-cage, and claimed that he owned a valid copyright to that image. Therefore, unauthorised use by THQ of his work in UFC Undisputed 3 was tantamount to copyright infringement.
Escobedo claimed that this amounted to $4.16m, ie 2% cut of all post-bankruptcy sales of UFC Undisputed 3. The judge disagreed and valued the claim at a slightly lower value: $22,500, this being the same amount Condit himself had been paid for the use of his image in the game.
... and virtual format |
Clearly Escobedo was not satisfied with this outcome. He appealed the order before a bankruptcy appeal panel. Escobedo's attorney asked to determine what royalty a hypothetical negotiation between his client and THQ would have produced and made the argument that Escobedo would have negotiated a per game royalty rather than a one-time fee. The debtors replied that Escobedo's claim must be reduced to reflect, among other things, the likelihood that a tattoo on another person's body cannot be protected by copyright.
Colin in action |
An official screenshot for the new Madden 15 video game |
I don't know anything about this field, but does US copyright law deem private use as infringing? When does infringement occur? Is it when the tattoo is simply displayed or when it is televised?
ReplyDeleteNot sure I understand your questions, Anonymous @ 10:02...
ReplyDeleteTo what are you thinking is "private use?"
Infringement occurs whenever any of the rights protected by copyright (including copying, distribution, etc) occur. With a videogame, this likely means that each game infringes not only upon sale of the game, but each time the copyright is reproduced while playing the game (sometimes, not so much - if you don't use the avatar of Condit, but if you are a Condit fan, perhaps lots of times)
Displayed or televised are both forms of distribution, and since there is no license, the copyrighted item is technically not exhausted, so both qualify as an infringement on the distribution right.
I would think that, for the UK, the display of a tattoo in a televised game ought to be covered by the exception recited in the UK by CPDA Section 31(1)[incidental inclusion] as the primary object of the broadcast would be to show the game, not the tattoos. This defence would would possibly not hold for video games, where a representation of a tattoo would have to be deliberately created for inclusion in the game
ReplyDelete31 Incidental inclusion of copyright material
(1) Copyright in a work is not infringed by its incidental inclusion in an artistic
work, sound recording, film or broadcast.
The issue was addressed - after a fashion - by Saki in 'The Background' - http://www.gutenberg.org/files/3688/3688-h/3688-h.htm#background
ReplyDelete