thq – Techdirt (original) (raw)

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 4.16million,assertingthathewasentitledto2percentofallpost−bankruptcypetitionnetsalesofthegames.UnfortunatelyforEscobedo,hisfirstswingwasamiss.Afterthedebtorsfiledamotiontoestimatetheunsecuredclaimat4.16 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 4.16million,assertingthathewasentitledto2percentofallpost−bankruptcypetitionnetsalesofthegames.UnfortunatelyforEscobedo,hisfirstswingwasamiss.Afterthedebtorsfiledamotiontoestimatetheunsecuredclaimat0, 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.

Filed Under: carlos condit, christopher escobedo, copyright, tattoos, ufc
Companies: thq

from the ownership-society dept

About a year and a half ago, we wrote what we thought was just a fun theoretical post about copyrights in tattoos. The general point was that if a tattoo artist creates a new and unique design, then, technically, they’re the one who gets the copyright. And that can lead to some awkward legal issues. Of course, it barely took three weeks before that “theoretical” question became real, when a tattoo artist who had done Mike Tyson’s famous tattoo sued Warner Bros. because the character Ed Helms plays in The Hangover 2 ends up with a similar (though not identical) tattoo. WB eventually settled that case to make it go away.

As a bunch of folks have sent in the news that tattoo artist Christopher Escobedo has sued video game company THQ because they accurately depicted UFC fighter Carlos Condit in the game UFC Undisputed 2010. Condit has a prominent “lion” tattoo which is replicated in the game. You can see the tattoo here:

None of the news reports we’ve seen have posted the actual legal filing, so we’ve posted it here and embedded it below. There are a few things worth noting. The game came out in 2010. Escobedo created the tattoo in 2009… but did not register it until February 24, 2012. That may significantly limit Escobedo’s ability to collect. Specifically, if you want to ask for statutory damages (up to $150,000), registration has to occur within 3 months of the work being published and prior to infringement. In this case, neither happened — which is why Escobedo is asking only for “actual damages.” And that’s going to make this case difficult for him. He’s claiming that he wouldn’t have licensed the image, which is how he’s going to argue for really high damages, but a court might not buy any real or significant “damage” to the copyright being used in the game.

Honestly, much of this feels like the artist is using this more as a way to get publicity, rather than as a way to win a lawsuit. After all, the lawsuit got attention… because the artist issued his own press release about it. That press release mentions the Mike Tyson tattoo case, suggesting that some people saw that and started looking for other opportunities to use tattoo cases to sue big companies, hoping for easy settlements.

Filed Under: carlos condit, christopher escobedo, copyright, tattoo
Companies: thq

Video Game Exec Claims Used Games 'Cheat' Developers

from the lets-learn-you-some-economics dept

For whatever reason, every few months or so, yet another clueless video game company exec spouts off about how the used video game market is somehow unfair or hurting video game developers. We’ve seen it again and again and again. However, since a whole bunch of you keep submitting the story that Cory Ledesma from THQ has made the downright laughable claim that the used video game market “cheats” developers, it seemed worth discussing.

This shows a fundamental misunderstanding of the law, basic economics and the customers THQ is failing to serve. On the law, Ledesma and others should familiarize themselves with the First Sale doctrine before making silly statements. On economics, repeated studies have shown that a healthy secondary market for products actually significantly helps the primary market. If you take more than a second and a half to think about it, it’s easy to understand why. If there’s a healthy secondary market for products, it reduces the risk for the buyers in the primary market. That is, if they buy the product and don’t like it, they know they’ll be able to resell it and recoup some of their losses. That makes it effectively cheaper for them to buy the primary product, increasing the number of sales. On top of that, the secondary market also helps in markets like video games in acting as a good way to segment the market, and get new buyers into a game or series of games. I’m sure many of the folks who are now buyers in the primary market, at one time purchased an earlier game in a series used. How is it that so many video gaming execs have so much trouble recognizing these basic concepts?

Filed Under: cheating, cory ledesma, secondary markets, used games, video games
Companies: thq