tattoos – Techdirt (original) (raw)

Stories filed under: "tattoos"

from the not-worth-it dept

Going all the way back to 2020, we have been discussing one of a series of copyright disputes centered on video games and their faithful depictions of real-life tattoos within them. While the first of these were related to depictions of NBA players in Take-Two’s NBA2K series, which the company generally successfully defended, one outlier was for Take-Two’s WWE 2K series, in which it faithfully reproduced the tattoos on Randy Orton, a wrestler. That case went to trial, in which the jury ultimately found for the tattoo artist, Catherine Alexander. However, the trial that took roughly 2 years and who knows how much in legal fees to conduct ultimately resulted in the jury awarding Alexander damages in the amount of $3,750. How in the world could that possibly be worth all this trouble?

Trouble that extends far beyond a four-figure damage sum, too. After all, the real damage in all of this is the precedent it sets. The idea that someone receiving a tattoo, creative endeavor though it may be, might suddenly lose some rights over the depiction of their own image and likeness is absurd. Absurd and, frankly, very problematic when it comes to what is essentially a play at ownership over a portion of a person’s body.

So, when Take-Two petitioned the court for motion for judgment as a matter of law, arguing both that the jury erred in considering its fair use defense and that the jury’s damage award, paltry though it might be, was based on undue speculation, I had hoped that the precedent might be reversed.

It was not. The court has instead found, in large part due to the limits on what it was allowed to consider, that the jury was reasonable in its finding that Take-Two had indeed infringed upon Alexander’s copyright rights. On the other hand, the court also found that Alexander and her witnesses presented no evidence of actual or potential monetary injury, and so the damages in the case have been nullified to zero.

“Alexander presented no evidence at trial that would support the jury’s damages award. There was no evidence of either a hypothetical lost license fee or the value of the infringing use to the infringer. Alexander’s expert, Dr. Jose Zagal testified that he believed a portion of the sales and profits of the video games were attributable to the five tattoos because Defendants needed Orton as a character in his game and he needed to have his tattoos. However, Dr. Zagal did not conduct an analysis of how much the video games’ sales or profits were attributable to the tattoos. Ryan Clark, Alexander’s expert, also offered no opinion regarding damages. Further, Alexander testified that she has never licensed a tattoo for use in any medium, and that she could not identify any business or clients that she lost due to Orton’s tattoos.”

As Eric Goldman rightly notes, this is no cause of celebration. While it’s a bit funny that it took four years worth of a legal battle to get all the way to a judgment that both finds that Take-Two infringed on Alexander’s copyrights but awards her precisely zero in damages, this judgment also further solidifies the notion that depicting a famous person who has tattoos is somehow infringement.

All of the questions around a tattooed person’s personal autonomy remain as a result.

Filed Under: catherine alexander, copyright, damages, randy orton, tattoos
Companies: take two interactive

from the branded dept

Why won’t this tattoo copyright thing die? We’ve talked about several instances over the past few years involving someone famous having their likeness faithfully reproduced, in an authorized fashion, in video game media. Take-Two has been involved in more than one of these disputes, which tend to amount to a tattoo artist or company claiming copyright on a tattoo design and arguing that their reproduction in video games constitutes copyright infringement. In the past, courts have managed to rule at the summary judgement phase that these claims are nonsense, that the depictions constitute fair use for a variety of reasons mostly dealing with the de minimis nature of the depictions in the overall game, and have found for Take-Two.

But then there’s the Randy Orton case involving Take-Two’s WWE 2K series. In that case, the court let the case go before a jury, arguing that the de minimis argument wasn’t valid because the entire tattoo was depicted. But that isn’t the de mimimis argument that was actually made. Instead, the argument is that the tattoo represents such a tiny percentage of the total creative work that it falls under fair use.

That aside, what remains is the uncomfortable question or scenario that I keep copying and pasting into each of these posts:

Put another way, it could be said that by branding the player with Solid Oak’s designs, the company seems to think it can control the players’ ability to profit off of their own likenesses. That this draws the mind to very uncomfortable historical parallels apparently was of no issue to Solid Oak.

Yeah, well, the jury in the Randy Orton case seems to think that this all just fine. The jury found for tattoo artist Catherine Alexander in the case, stating that Take-Two did indeed infringe on her copyrights for Orton’s tattoos. The award, however, likely left Alexander wondering whether any of this was worth it.

On Friday, a jury in federal court in southern Illinois awarded artist Catherine Alexander $3,750 after ruling in her favor in her lawsuit against Take-Two Interactive Software, 2K Games and World Wrestling Entertainment. The sum may seem small, but according to numerous art industry publications, the case sets a “fascinating precedent.”

So, two things here. First, this trial started in 2018 and I can’t possibly believe that $3,750 is worth whatever time and money Alexander spent on all of this. If that is where we could leave this entire discussion, it would be a mildly irritating result and that’s it. Unfortunately, there’s that last bit about the precedent this sets.

And that sure feels like a massive freaking problem, because the precedent being set is that a person can contract an artist to put a tattoo on their body and that suddenly reduces that person’s autonomy over how their own body can be depicted in other media. Or, more concisely, getting a tattoo now means losing some control over licensing your own image and likeness.

And whatever else we might want to say about the topic, that is not what the framers had in mind when copyright law was constructed.

According to Video Games Chronicle, “Although the final amount may be considered relatively small, it does set a potential precedent for other tattoo artists to make similar claims if their designs are replicated on athletes in video games.”

Uh, yeah. I would think we’re now going to see an explosion in the number of tattoo-related copyright infringement cases going to court and every single one of them is going to point directly to this ruling as a reason to escape summary judgement.

And if I’m an athlete or celebrity, you better believe I’m thinking long and hard about whether getting a tattoo without all kinds of legal release forms is worth it. This ruling has made being famous less lucrative, since media and gaming companies are going to be less interested in faithfully depicting these individuals. And perhaps it’s also made the tattoo industry less lucrative if the famous suddenly have to worry about this sort of thing when deciding to get a tattoo.

All for a couple thousand dollars? Cool.

Filed Under: catherine alexander, copyright, fair use, implied license, randy orton, tattoos
Companies: take two, take two interactive

from the he-shoots-he-scores dept

Somehow, it’s been nearly four years since a tattoo company, Solid Oak Sketches, decided to sue 2K Sports, the studio behind the renowned NBA 2K franchise, claiming that the game’s faithful representation of several stars’ tattoos was copyright infringement. The company claimed to own the copyright on the design of several players’ tattoos, including most famously LeBron James, Kobe Bryant, and DeAndre Jordan. The claim in the suit was that 2K’s faithful depiction of the players, whom had collectively licensed their likenesses via the NBAPA, somehow violated Solid Oak’s IP rights.

Put another way, it could be said that by branding the player with Solid Oak’s designs, the company seems to think it can control the players’ ability to profit off of their own likenesses. That this draws the mind to very uncomfortable historical parallels apparently was of no issue to Solid Oak.

Well, while 2K Sports failed to get the court to dismiss the case back in 2018, it has more recently won the case on summary judgement, with the court quite helpfully getting everything right and declaring the depiction of tattoos in video games in this manner to be Fair Use.

The defendants have sought to dismiss the plaintiff’s complaint because “Plaintiff cannot prove its claim because Defendants’ use of the Tattoos is de minimis and Plaintiff is this unable to prove the key substantial similarity element of its cause of action.” They state their use of the tattoos and images “was pursuant to implied authorization granted prior to Plaintiff’s acquisition of any rights in the Tattoos.”

The court has granted the summary judgment dismissing the infringement claim because “no reasonable trier of fact could find the Tattoos as they appear in NBA 2K to be substantially similar to the Tattoo designs licensed to Solid Oak.” Additionally, the tattoos “only appear on the players upon whom they are inked, which is just three out of over 400 players.” Therefore, the odds are against one of those Players with their tattoos being selected. Additionally, because Defendants had a license for the game, they had implied license for the tattoos as part of the players’ likeness and the Players allowed Defendants to use their likeness.

The full filing, embedded below, goes into far more detail. And, frankly, it’s quite nice to see a court get this so right. It’s clear the court in this case took care and time to go through the material brought by both parties and carefully weigh the claims against Fair Use. Given such careful examination, the conclusions were fairly obvious. In addition to the rationale above, the court notes that the tattoo artists in this case, despite claiming copyright infringement for the de minimis reproduction of tattoos in the game, couldn’t even reproduce them themselves given the likeness rights of the players.

Solid Oak has neither licensed the Tattoo designs nor sold merchandise depicting the Tattoos. (Def. 56.1 ¶¶ 107-08.) Solid Oak’s owner, Matthew Siegler, testified that he would “need permission from the players . . . to not infringe on their right of publicity,” in order to move forward with a business selling “dry wick apparel” bearing the Players’ tattoos. (Cendali Decl., Ex. A at 389.) Solid Oak does not have a license to use the Players’ publicity or trademark rights. (Def 56.1 ¶ 102.) Solid Oak has not proffered any evidence indicating that it has a prospect of obtaining such rights.

And so ends one of the most annoying video game IP lawsuits of all time. The shame of it, really, is that it took the system four years to reach the only logical conclusion: someone getting a tattoo doesn’t somehow destroy their ability to profit off of their own likeness.

Filed Under: basketball, copyright, deandre jordan, fair use, kobe bryant, lebron james, nba 2k, tattoos, video games
Companies: 2k sports, solid oak sketches

from the written-in-ink dept

I’ll forgive you since it’s been two years, but hopefully you will remember our posts about a crazy copyright lawsuit back in early 2016 between a company called Solid Oak Sketches and Take-Two Software. At issue were Take-Two’s faithful depictions of several NBA stars in its NBA 2K series of games, including LeBron James and Kobe Bryant. The problem is that Solid Oak claims to have copyrights on several tattoos appearing on the skin of these players, all of which show up in the images of the game. Of course, Take-Two negotiates the rights for player likenesses with the NBA Players Association, meaning this lawsuit has the odd smell of a third party bickering over branded cattle. While Solid Oak is asking for $1.2 million in damages, Take-Two has pointed out that these sorts of statutory damages shouldn’t apply as the company only registered its copyrights in 2015. This fact leads a reasonable observer to wonder why the copyrights weren’t registered much earlier, were Take-Two’s use so injurious.

That question is of course tangent to the most central concern of why in the world any of this isn’t obvious fair use? Take-Two has First Amendment rights, after all, and its use of the eight tattoos in each iteration of the game is a hilariously small portion of each work. On top of that, the whole enterprise of the game is to faithfully depict reality with regards to each player whose likeness it has properly licensed through the NBAPA. None of this should strike anybody as a million dollars worth of copyright infringement.

And, yet, a court recently refused to grant Take-Two’s petition to dismiss the case, allowing this mess to proceed.

“While Defendants contend that the Tattoos in NBA2K are ‘observable only fleetingly’; ‘displayed only briefly’; ‘a small part of the graphical display’ when displayed; ‘sometimes obscured by other graphics’; ‘not displayed prominently’; and ‘sometimes displayed out of focus,’ Plaintiff denies each and every one of these characterizations of the Tattoos. Instead, Plaintiff contends that, if an NBA2K player selects Messrs. James, Martin and Bledsoe in a given game or series of games, or ’employs the broad range of the video game’s features to focus, angle the camera on, or make the subject tattoos more prominent,’ ‘the overall observability of the subject tattoos can be fairly significant.’ Thus, it is difficult to determine whether the substantial similarity is apparent to the ‘average lay observer,’ if what he or she is observing varies in each iteration of the game.”

I own several of these games and can attest that the observability of any tattoos on any player within them are fleeting at best. The whole point of the game is to be an action-packed basketball experience from a viewpoint of most of, or the entire, basketball court. Picking out individual tattoos is rarely possible other than in manual instant replay. And, sure, some players might use that replay feature, but not regularly and not as part of regular play. This smacks of a judge that needs only to be sat in front of a television or computer screen to see the game in operation in order to have reached the proper and opposite conclusion.

But Take-Two also made a First Amendment claim, arguing, as I did above, that granting tattoo artists the rights Solid Oak is claiming would be to allow tattoo artists to trump the likeness rights of a natural person. If that doesn’t strike you as plainly insane, it should. Yet the judge apparently considered all of this a question of visual accuracy and therefore denied the fair use defense.

“Because of the difficulties inherent in conducting a side-by-side comparison of the video game and the Tattoos, further evidence must be considered in connection with the fact-intensive question of the applicability of the fair use defense. As the differences between the Tattoos and Defendants’ use in the video cannot be resolved with assurance on a visual comparison of the works alone, Defendants’ fair use of the Tattoos is not so clearly established on the face of the [SAC] as to support dismissal.”

To be fair to the judge, often times the court is wary of dismissing early on in the trial process over fair use defenses that aren’t on very, very solid ground. That may be what is going on here. But if it is, this seems to be chiefly an issue of calibration, because Take-Two’s fair use claims are very strong, and the implications of Solid Oak succeeding in its lawsuit are both not in the original interests of copyright law and plainly horrifying when it comes to public persons and their ability to trade off of their own likenesses.

Hopefully a jury will be more grounded than the court.

Filed Under: basketball, copyright, fair use, kobe bryant, lebron james, tattoos, video games
Companies: solid oak sketches, take two software

from the hmmm dept

Back when I first wrote about the copyright lawsuit between a tattoo artist and Take-Two Software, makers of the highly successful NBA2K basketball series, over the faithful depiction of LeBron James’ image including his ink, I had been hopeful that perhaps this case could be a step towards resolving whether fair use applies when presenting images of people with tattoos in creative works. And that might still happen, but the defense Take-Two has decided to start things off with won’t do the trick. Rather than asserting the work’s status as fair use, the video game maker has led with a challenge to whether the tattoo artist can claim statutory damages based on when he had registered the copyright for the tattoos in question. It’s a play on a technicality, one which seems to strangely play on what counts as an independent work.

Solid Oak Sketches had sued for damages nearing $1.2 million, claiming eight works had been infringed upon in the game NBA 2K16, including tattoo designs for LeBron James and two other players. According to Take-Two’s most recent filing with the court, Solid Oak Sketches registered the copyright for those tattoos in 2015. The game company’s argument is that it has been depicting those players and their tattoos since 2013, therefore there is precedent that statutory damages are not in play.

These claims for damages, however, are precluded by 17 U.S.C. §412. As is clear form the face of the Amended Complaint and its attachments, Take-Two has depicted Mr. James, Mr. Martin, and Mr. Bledsoe — and their tattoos — in its NBA videogames since at least 2013. This is years prior to the registration of the tattoos with the U.S. Copyright Office in June and July 2015… Here, where the same work has allegedly been infringed by the same defendant in the same manner since 2013 — long before registration — binding Second Circuit precedent dictates that statutory damages and attorneys’ fees are unavailable.

In other words, because the complaint is over infringement that is essentially the same as has been occurring two years prior to the registration, precedent indicates that statutory damages and attorneys’ fees should not apply. It’s an interesting argument, though I wonder if it isn’t without its pitfalls. Does Take-Two mean to suggest that in some way each years’ NBA 2K game is not a separate work and publication. I am sure that is not what they are trying to argue, but arguing that the depiction of individual players within the game are essentially the same depiction for the purposes of combating this action leads us down that path.

Regardless, it does certainly seem to demonstrate that whatever harm Solid Oak Sketches wants to claim in their suit seems silly. Were it so injurious, it brings the question as to why it didn’t act to protect itself in all the years previous in which similar alleged infringement is supposed to have occurred. Did it suddenly only become a problem in 2016?

The filing also makes it clear that Take-Two plans to also attack the underlying nature of the infringement claim in the future, which likely means it will assert a fair use argument. I hope it does. That would be the more important precedent to set here.

Filed Under: basketball, copyright, lebron james, registration, tattoos
Companies: solid oak sketches, take two software

from the ink-blot-test dept

Are tattoos covered under copyright law? Yeah, probably. But also, hey, maybe not. But if yes, how much control does the artist get to exert over depictions of the copyrighted tattoo? After all, it’s on somebody’s skin. And, hey, that somebody might be famous, like an athlete, who might then be depicted in video games about that sport. If so, then we get to find out if depictions in artistic works, such as video games, would fall under fair use and/or First Amendment provisions. It seems nobody is actually sure how to answer these questions, because what few cases have been brought before the court all appear to have ended in settlements and low-level court rulings.

Which, I suppose, is why they seem to keep on a-coming. The latest is a company named Solid Oak Sketches, which claims to own the copyright on the tattoo designs appearing on the bodies of several NBA players, including LeBron James, Kobe Bryant, and DeAndre Jordan. The company has recently filed a copyright infringement suit against Take-Two Software, makers of the NBA2K franchise.

Solid Oak is suing Take-Two Interactive Software and other companies associated with the videogame NBA 2K16 for unauthorized reproductions of those tattoo designs. The question over whether tattoo designs are copyrightable has never been fully decided by a court, as acknowledged in the new lawsuit. Victor Whitmill’s lawsuit against Warner Bros. over Hangover 2 settled as has other disputes including one by a tattoo artist, Christopher Escobedo, who inked a UFC fighter and later asked a bankruptcy court to determine the value of his tattoo claim against videogame publisher THQ.

On one hand, copyright law protects original works of expression fixed in a tangible medium. In the Whitmill case, before it settled, the judge commented, “Of course tattoos can be copyrighted. I don’t think there is any reasonable dispute about that.” An opinion was never issued, however. In the THQ case, Escobedo was awarded $22,500 for his lion tattoo. Then again, it could be argued that tattoo appropriation in an expressive work is de minimus.

Not only that, but when combined with a First Amendment argument, it’s difficult to see exactly why tattoo artists should hold any kind of sway in these cases. The depiction of the players has been licensed by the NBA Players Association, after all, and the tattoos faithfully reproduced within the game are a part, albeit a small part, of that image. I’m struggling to understand why Solid Oak’s quarrel is with the game-makers and not the NBAPA. But even then, the idea that players’ rights to license their own images might be stilted by what is essentially a form of voluntary branding, a la cattle, is insane.

As it happens, I am a player of this particular franchise. The tattoos add to the ambiance and realism of the player depictions, but they aren’t in any way central to the game. Arguing otherwise is silly. Yet, because LeBron James was featured on the cover, the lawyers for the plaintiff argue that the tattoos are “the face” of the game, thus arguing for higher damages than the Escobedo case. Note that the tattoo on LeBron James’ arm in question is a portrait of his son. They had previously asked for just over $1.1 million in a demand letter for a perpetual license.

As in most other similar cases, I would expect Take-Two to settle, but I truly hope they do not, because it’s way past time that we get some clarity on whether or not tattoo artists can hold hostage likeness rights in this way.

Filed Under: copyright, deandre jordan, kobe bryant, lebron james, nba 2k16, tattoos
Companies: solid oak, take two interactive

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

Do School Administrators Not Realize Students Have Access To The Internet?

from the why-bother? dept

We’ve had a few stories recently of school administrators trying to stop the publication of a school publication because they didn’t like the contents. In some cases, the students just route around the administrator and publish online. But, an even bigger point is, what good do the administrators think they’re doing in trying to censor content in the first place? Take, for example, the story of a principal blocking the publication of a student magazine at Orange High School in Orange, California. Apparently, the principal was upset about a cover story about tattoos, claiming (bizarrely) that the photo on the cover, of a (faux) full back tattoo that included the magazine’s name (“Pulp”) and the school’s mascot, glorified “gangster” culture, specifically because the text was spelled out in old English lettering. Really.

However, the details show that the real concern had nothing to do with “gang” issues. The principal wanted the article to include extra information about how tattoos were permanent and not easily removed. As Lee Baker at the Citizen Media Law Project points out:

Although it may be helpful for students to be reminded of the difficulty of tattoo removal, such a concern should not give a school principal the legal right to suppress student speech.

Still, the bigger issue from my perspective is understanding exactly who the principal think he’s preventing from “harm” in this action. It’s not as if students don’t know about tattoos or how to find out more info on tattoos. Those students have access to this wonderful thing we call “the internet.” They can also probably walk into any number of tattoo parlors. Blocking the publication in a school magazine because the principal doesn’t like tattoos hardly seems likely to actually stop anyone from getting a tattoo.

Filed Under: orange high school, publishing, students, tattoos