Tattoos Copyright, Video recordings of your face are illegal? Options

[Draco18s]

Here's an article I found on it
http://www.salon.com/entertainment/movies/...ngover_two_case

Basically, the artist that did Mike Tyson's tattoo tried to sue Warner Brothers for the use of his tattoo design in the movie The Hangover II.

What are the implications of copyright being applied to artwork on someone's skin? Would it be illegal for their picture to be taken or filmed? Tyson has a specific release from the tattoo artist that he can be recorded, but what if he didn't? What if this came up in the 6th world where video security is widespread? Could such a person sue each and every business the wearer of the tattoo walked by and entered in, simply because the tattoo was caught on camera?

[Tymeaus Jalynsfe...]

Interesting... Will have to follow this to see where it ends up... (IMG:style_emoticons/default/smile.gif)
Thanks for the Link.

[Raven the Tricks...]

Probably not, for two reasons. The first is that Mike Tyson's face tattoo is something of a special case, in that the artist and Mike specifically had an agreement for the artist to keep control of the copyright for the tattoo (or at least that's my understanding). The second and more important point is that the reason the copyright issue is coming up with regards to The Hangover 2 is not because it's being filmed, but because the image is being used in a for profit work. Unless a company is using it's security camera footage to make a direct profit somehow (i.e. some sort of reality tv show maybe) the issue wouldn't come up.

[Ghost_in_the_Sys...]

I agree. While tattoos should by all rights be considered art (There is nothing that separates them and a painting besides the medium used) they are not generally copyrighted. This is usually because they don't depict anything copyrightable. In a case however where the tattoo is unique enough to be considered copywritable, it certainly could be (though doesn't have to be) copywrited. It is also important to note that in most cases the copywrite would in fact belong to the person on whom the tattoo is placed, as opposed to creating artist unless some agreement is made. This is similar to if I were to buy an originally commissioned work of art from someone, I would have control over its use and reproduction unless otherwise stated in the contract.

Obviously the artist and Mike have some kind of arrangement that keeps the copyright under the artist's control, but allows Mike to use it as part of his image for making money (Kind of like being allowed permission to display a copy of a copyrighted work in an art gallery).

I also agree that it wouldn't come up as an issue in security cameras unless the film is being used to generate a revenue through its sale via something like a TV show or movie, in which case the appearance of anyone in that film would require an agreement anyway (though there is likely something with the laws of SR that would bypass the need for that).

[Titus]

Hmm well I am venturing a little more than I usually do but I can take a stab at this without revealing too much of my offline self. Nothing I say is legal advice. This supposes copyright law doesn't significantly change in 70 years.

Shortly, a copyright case would be very hard to prove. It would be easier if the artist could copyright the image. No one would be liable to the tattoo artist probably.

I'll start with the simplest first. The businesses where the man with the copyrighted tattoo are not going to be in any legal water unless they facilitated the copyright infringement. Their social reputation may take a hit if anyone suspected they were involved or let shady copycats come in. Businesses generally have no control over who comes in their doors. It would be the burden of the victim to show the business was involved with the copyright infringement. The exact standard and evidence that would be used is a little beyond what I would feel comfortable saying.

The copyright, waiver or no waiver, does not prevent a person from appearing in public. I could get a tattoo of anything on my face and go out in public. The artist would have no right to sue based on his client appearing somewhere he did not want. He could take better care of picking his clients though.

The only real issue with copyright would be someone stealing his image. Filing with the copyright office helps but is not always required. Of course, I cannot even be sure tattoos are copyrightable in the first place. If there was a template that worked on any particular face, it would be a stronger case.

Also, the artist could be copyrighting the image used for the tattoo. Someone stealing the image would be violating copyright if the image itself, not the tattoo directly was copyrighted. The argument would be that the thieving tattoo artist stole the image.

If the tattoo artist is arguing that the tattoo is copyrighted, there are a few hurdles. The first is the medium. Two pictures in different mediums look totally different. Tattoo artists may use different tools which change the end tattoo result. For example, think Monet done with crayons. Obviously, the crayons are a totally different picture. This would be similar to someone programming an object for Windows and guy number two programming for MAC.

If the copyright did cover the medium, there is still issue. That is whether or not a face or body is a unique canvas requiring specialized skills. Would the tattoo change based on an elven face or a dwarf face?

[MJBurrage]

As a general rule, anyone can film in a public place with no restrictions.

If you try to sell the recording than there may be a copyright issue if the primary subject of the recording is copyright protected.

So say a copyrighted work of art is on public display:

• I film another subject, but the work of art is in the background – I'm fine and can do what I want with the recording
• I film the work of art as my primary subject – I am fine unless I try to distribute or sell my recording. Either of those actions would constitute copyright violation as my rights are limited by derivative copyright

As I understand it, the second point was the presumed basis for the tattoo lawsuit. I.E. Tyson in a film is a primary subject, the tattoo was secondary. Once they put the tattoo on another actor, it became primary in those scenes.

However, the tattoo artist lost. So either the judge found that a tattoo is different than most art under copyright law, or that the film was parodying the tattoo. (parody allows for copyright exemptions).

NOTE: Illinois, Massachusetts, and Maryland are three of 12 states in which all primary parties must consent for a recording to be legal unless—as in the case with a news crew–it is obvious to all that recording is being done. So in those states an obvious security camera is fine, but a hidden one is not. (Of course you would have to know to sue.) In some of those 12 states—Massachusetts and Illinois for example—secondary laws based on the consent law, have made it explicitly illegal to film police officers who are on the job.

See Are Cameras the New Guns? for more about filming police.

[Ghost_in_the_Sys...]

I think we're talking about the image itself being copyrighted, not the tattoo. When you copyright a painting, you are copyrighting the image on the painting, not the physical painting itself.

And in fact, if someone had made a crayon drawing of a manet painting when it was still protected under copyright laws (or would have been if they were around and enforced at the time) it would have been a violation of copyright laws.

Micky Mouse, for example, is copyrighted, and so it is illegal to use his image, in any medium, for profit without express permission from Disney (with fair use exceptions such as parodies of course)

[Ghost_in_the_Sys...]

However, the tattoo artist lost. So either the judge found that a tattoo is different than most art under copyright law, or that the film was parodying the tattoo. (parody allows for copyright exemptions).

Well, he didn't quite lose. He lost the part where he tried to stop a multi-million dollar film being shown. He hasn't lost the part where he has a copyright claim and could get millions of dollars in compensation from the film.

Basically the judge said "You might have a case here, but I'm not going to stop something that will cost the economy millions of dollars while we try and figure it out."

In all honesty, it is likely better for the artist that the movie be played, because if he wins, then he gets more money based on how well the film does as opposed to some tiny amount for the use of his copyrighted image, or possibly nothing if the film people just CG it to something else.

[hobgoblin]

I am reminded of DNA tattoos in SLA Industries, and the punchline about a high ranking operative suing a child over copyright infringement. A lawsuit that ended up with the operative facing a paternity suit because he had been naughty with the mother some years ago...

[KarmaInferno]

Micky Mouse, for example, is copyrighted, and so it is illegal to use his image, in any medium, for profit without express permission from Disney (with fair use exceptions such as parodies of course)

Delete the "for profit" and you are correct.

Profit only enters the picture in determining the penalties, not for the establishment of the actual violation.



-k

[hobgoblin]

And even then there is a minimum punishment even if the person(s) involved made no money from the activity.

Basically the law is stilted towards people doing it on a massive scale for sale, while more and more it is being used against people that do it for personal use.

[Ghost_in_the_Sys...]

Hmm, I did not think personal use fell under copyright. I thought that someone could get a Micky Mouse tattoo without breaking copyright because they weren't gaining profit or publicity or anything like that for it. I could be wrong though, like you said, it could be something that is just generally ignored because Disney isn't really going to come after you for the $50 or whatever your tattoo might grant them in fines.

[hobgoblin]

Not sure if such a tattoo would fall under copyright or trademark. If it was copyright then i think the minimum sum under US law is $750...

And yes, that is what one can get slapped with for one low bitrate MP3...

[MJBurrage]

Well, he didn't quite lose. He lost the part where he tried to stop a multi-million dollar film being shown. He hasn't lost the part where he has a copyright claim and could get millions of dollars in compensation from the film.

Basically the judge said "You might have a case here, but I'm not going to stop something that will cost the economy millions of dollars while we try and figure it out."

In all honesty, it is likely better for the artist that the movie be played, because if he wins, then he gets more money based on how well the film does as opposed to some tiny amount for the use of his copyrighted image, or possibly nothing if the film people just CG it to something else.

Thanks for the correction, that's what I get for going from memory instead of research.

Tyson Tattoo Lawsuit: Studio’s Defenses Are ‘Silly’, Says Judge is a great summary.

[LurkerOutThere]

I agree. While tattoos should by all rights be considered art (There is nothing that separates them and a painting besides the medium used) they are not generally copyrighted. This is usually because they don't depict anything copyrightable. In a case however where the tattoo is unique enough to be considered copywritable, it certainly could be (though doesn't have to be) copywrited. It is also important to note that in most cases the copywrite would in fact belong to the person on whom the tattoo is placed, as opposed to creating artist unless some agreement is made. This is similar to if I were to buy an originally commissioned work of art from someone, I would have control over its use and reproduction unless otherwise stated in the contract.

Minor nitpick, if WB really wanted to fight this they could get this copyright thing shut down rather quick on prior art, it's a fairly derivative tribal piece even more so if you look at the specific culture it gloms from. The only thing that makes it passingly unique is it's a facial tattoo and it's on Mike Tyson.

Basically, Tyson's an idiot for not getting sole ownership of something on his body, and the artist thinks he hit the redneck lottery, his best hope was that WB would pay him to go away. Now that's not looking as good with no injuction in place.

But at always IANAL.

[Ghost_in_the_Sys...]

Only if they could find that particular image I think (or something exceedingly close). The good thing for WB is that it isn't an absurdly complex image, so they might be able to find something.

What is IANAL? Does Apple make sex toys now?

[LurkerOutThere]

I Am Not A Lawyer but your way sounds more fun.

[Titus]

It is no surprise that the tattoo artist lost the injuction (motion to stop the film showing). To get an injunction, generally one has to show irreparable harm to get an injunction preventing behavior. There are exceptions but that's the general rule. The court looks at the nature of the harm, cost to the accused to stop the activity, and the likelihood of winning on the merits.

Here, we have a harm that can theoretically be compensated for money and a harm of losing millions of dollars. The judge would almost always side with the defense here. An injunction usually wins for awhile if the harm cannot be made right with money. Usual winners of temporary injunctions are people preventing historical buildings from destruction, saving evidence, stopping illegal activity, ceasing trespassing, etc.

The loss of the injunction does not prevent the artist from proceeding at a civil trial.

[hobgoblin]

What is IANAL? Does Apple make sex toys now?

Sex toys, lawyers, depending on your kink of choice there is little difference...

[Ghost_in_the_Sys...]

If anything the film will help the artist since now all kinds of people will know about his work. Except they likely won't know it is him unless they hear about this court case. Maybe WB could be nice and add a line to the credits about 'design for so-and-so's tattoo by:'. I doubt they would, but it should be possible (or should have been possible)

[nezumi]

All original artworks are copyrighted by default, when they are created, whether registered or not. I would assume that would include the person who designed the tattoo. This is excepting artwork that is already in the public domain (I'm a little surprised that 'black squiggly lines', a variation of tribal art, isn't considered public domain, but that may be because it just hasn't been taken to court yet).

I do not know if the tattoo artist designed the tattoo, but I assume so. If he didn't design it, he has no case. He isn't creating art, he's reproducing it.

Copyrighted art may not be reproduced without the artist's consent (with a few exceptions, including parody. The Hangover, being a comedy, could probably file under this.) However, photographs and videos of art are considered new art pieces of their own. If you paint a painting, then I take a picture of the painting, I may sell my picture without paying or crediting you. There are some fights back and forth on this to define what is 'reproducing' (like making a print) vs. 'authentic artistic creation', but there you go. I believe that tattoo reproduction does not qualify for this, so a mickey mouse tattoo is in fact illegal.

Some states have laws against being filmed without consent, but this is generally against AUDIO recordings; they are wiretapping laws. CCTV is silent, and so doesn't apply. Similarly, there's no way the government will let all of its speed light cameras get shut down because I have an artistic bumper sticker, so I'm sure they will decide that I am 'consenting' to photography if I sell my art for use in the public.

So all told, the movie is an authentic artistic creation, ergo you can include other copyrighted images as part of it (otherwise the movie studios could get sued for every piece of art anywhere they accidentally catch on film, and how often do you hear that coming up?) But to answer the OP, if you're asking 'will the government make a ruling which forbids the government from filming you as much as they'd like', the answer is no. They'll make up a law after the fact if they must, but ultimately, they're not going to bind their hands like that any more than you're going to go to the police station and turn yourself in for speeding.

[Ghost_in_the_Sys...]

They'll make up a law after the fact if they must, but ultimately, they're not going to bind their hands like that any more than you're going to go to the police station and turn yourself in for speeding.

You've never done that before?

Also, despite being a comedy, I highly doubt they'll be able to qualify their use as parody.

[TheOOB]

This is an interesting case. It should be noted that it's not the specific tattoo that copyright is being claimed on, but the design. Mike Tyson can show his tattoo wherever he wants because he basically paid for the rights to do so, the question is can someone else copy the same design and use it in a movie.

[KarmaInferno]

Technically this might fall under both the Reproduction, Public Display, and Derivative Works parts of Copyright Law.

They aren't actually being sued for filming Mike Tyson's tattoo.

They are being sued for reproducing Mike Tyson's tattoo on another actor and then using that in the second film.

It will be interesting to see how this turns out, because I don't know if this kinda thing has come up before. Might be new law.



-k

[Ghost_in_the_Sys...]

I think the real issue will not be 'is a tattoo art' as the article suggests, but rather 1) who owns the copyright of a tattoo (Which by all rights should be the artist) and when that falls through, the big issue will be 2) Since the tattoo is part of Mike Tyson's Image, appearance, and likeness, dose having someone else attempt to mimic his likeness in the form of the tattoo constitute use of his image, or the use of the tattoo.

If for instance they made a football game about him, they could include the tattoo as part of his character because it is part of his likeness without having to pay a copyright fee.

I don't think it would constitute using Mike's likeness in this case because the tattoo is the only thing copied. It also isn't a parody, because they aren't using the copied tattoo in any manor that resembles parody, and as I recall, a parody can't be an exact copy. It has to be at least somewhat distinctly different from the original.