Athletes Don’t Own Their Tattoos – a Problem for Video Game Developers
nytimes.com
nytimes.com
Seems to me that the digital representation of someone is just another way of displaying themselves. If it's legal to do it in photos and videos, it's legal to do it in 3D models.
But even without that, I think it's unethical to claim ownership to any part of someone else's body and tell them what they can and can't do with it. (Laws are an obvious exception to this.)
I'm also not surprised it largely isn't the artists themselves, it seemed weird that a tattoo artist would go after high profile clients after the fact.
If it's legal to do it in photos and videos,
it's legal to do it in 3D models.
I mean, our copyright laws are full of weird seeming-contradictions. Games companies pay to license an athlete's likeness, but photographers don't? Photographs of a sculpture are copyright-protected, but photographs of tattoos aren't? Architecture with an expired copyright can be lit up with lights to regain copyright protection?
Copyright law isn't really amenable to deducing that one thing is legal just because another very similar thing is legal.
Another fun legal question is what happens if I add fake audio to a video where the video is legal but the audio isn't, but I use legal audio recordings to fake the voice of the person I videotaped? Does it matter if the injected audio is close enough to what was originally said (say I remembered the words while I recorded the video)?
No, that's not what they're suggesting at all, and you're conflating two separate things here. Using someone's likeness in a commercial work is already legally protected (in the most economically important jurisdictions anyway) and is different from mere publishing of a legal photo for which the copyright is owned (for which no permission is needed by default). The argument is that if you received Mike Tyson's agreement (or that of his authorized legal agent of course) to use his likeness in a game, then a 3rd party should not have veto over Mike Tyson's ability to allow use simply because they were paid to make a tattoo for him. It'd be his likeness, and he should be the sole decider of that absent compelling public interest otherwise (such as political commentary or criticism).
If somebody else does some work with our bodies, their interest in that should be exhausted instantly by the payment they receive for that service (or by nothing if they volunteered). It's our bodies we're talking about here, one of the most personal things about a human. At the very least this should be the default, though personally I'd lean towards this being something that is immutable as well and cannot be contractually signed away either. I don't think the can of worms it opens is worth any possible public gain from body royalties.
If you agree (maybe you don't) that I shouldn't be able to sell cereal with a picture of my Darth Vader tattoo on the box then what's the difference? That Darth Vader belongs to someone other than the tattoo artist? If that's the argument then why does the tattoo artist have to give up their design but Disney does not when it's drawn on someone?
Did you have a license to get those as tattoos in the first place? My understanding would be that the original sin there would be getting that tattoo of an IP at all without permission, even if such things commonly fly under the radar (unless there is some legal right to get any tattoo regardless of IP). The remedy there would presumably be to get sued and have to pay a judgement as a result of a lost civil action [1]. Future separate damages could result in future suits.
>"It's now mine to do whatever I want with"
Be specific about what you're referring to with "it's" there. Are you arguing that an instance trademark infringement would mean the infringer no longer owned their whole body any longer? Is that actually justified by the damage caused by an unauthorized tattoo? Of course it wouldn't allow any other usage beyond that incidental to using their body and likeness overall. But I'd be really, really wary of allowing IP infringement to enter into this area, and try to game theory out the costs even for restricted implementations. Imagine for example you argued "well, we'll only restrict it for commercial usage!" But now consider the case of a person with an infringing tattoo who commits some act of public notoriety, say a politician who is significantly corrupt. News organizations want to cover this, and they're clearly commercial, but that would mean if they show the politician in question they'd be showing the infringing tattoo as well. Is this allowed? Does it require a court case to determine as an affirmative defense or is it innate, and what are the chilling effects if the former? What's the line?
I'm not saying you can't come up with answers for all this, but it also gets awfully complicated awfully quickly vs just defining bodies as a special area of law. Exactly what damages is that Star Wars tattoo really causing?
>If you agree (maybe you don't) that I shouldn't be able to sell cereal with a picture of my Darth Vader tattoo on the box then what's the difference?
Are you seriously confused about the difference between a cereal box and a human's control of their own body and the public's interest in the representation of humans? It is both perfectly legitimate and standard practice to weigh different things differently and consider how remedies impact conflicting parties. IP in general only exists for the public interest after all.
>That Darth Vader belongs to someone other than the tattoo artist?
Well yeah, that matters in that the tattoo artist could themselves be committing an act of infringement against a third party. Whereas an original design for hire does not involve any other parties besides those part of the transaction. That's not irrelevant.
>If that's the argument then why does the tattoo artist have to give up their design but Disney does not when it's drawn on someone?
Why do you assume the tattoo artist should own their design on a person? The natural default is no IP. How is the public interest advanced by giving tattoo artists a perpetual right over any human they work on vs declaring that all commercial compensation should be part of the actual transaction? We exhaust rights (such as with first sale doctrine) elsewhere all the time.
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1: Maybe removal would be offered as a settlement, but I'm not sure a US court would ever require that as a judgement since performative actions are not usual in civil cases, plus it'd constitute a painful medical procedure which is its own can of worms.
Disney creates design (action 1). Someone puts it on human skin (action 2). Someone uses that image of the tattoo on a person as promotion (action 3).
Most people would agree even if you tattoo Darth Vader on your body you can't use Darth Vader on your body for promotion it belongs to Disney
Change action 1 to the same person as action 2. Why does the tattoo artists not get the same rights as Disney? Nothing changed except replacing Disney with Tattoo artist. In fact let's add a 3rd case. Tattoo artist hires friend to design tatoo. Why is this friend not afforded the same rights as Disney?
AFAICT the law is on the side of the person that created the art (or owns the copyright in the art if the person that created it transffered their rights). If you tattoo Darth Vader on yourself the person who owns the rights to Darth Vader doesn't suddenly lose their rights. Instead, you irresponsibly used someone else's IP. Nothing changes if that IP holder is suddenly not Disney.
This is true for normal contracts, at least in the USA. If you contract an artist to draw something for you, unless you specifically get them to sign away all their rights in the art via the contract they retain those rights.
https://www.google.com/search?q=artist+retain+rights+unless+...
You could argue the person paying for the tattoo as a reasonable expectation that the tattoo now belongs to them, not the tattoo artist. But that doesn't seem to fit with normal case law. If you pay your buddy $100 to make a logo for your new youtube video you may think you're done. The logo is yours. But AFAICT unless you specifically signed a contract your buddy would actually still own the rights to that logo regardless of the fact that you paid him. See all the links that google search brings up. Even though most poeple would say common sense says the artist has no rights, you paid them, case law says otherwise. Without a specific contract saying otherwise you don't own it even if you paid.
No one's claiming ownership of the athletes body (because, first sale doctrine.) If they want to cut their skin off and sell the tattoo, that's not an issue.
Ownership of the copyright on the tattoo is not ownership of any part of the athlete's body.
The artificial limitations on creativity are impeding economic growth and need to be removed
This way, a company couldn't just hold onto an IP and no do anything unless it wanted to keep paying the taxes, and the higher the demand for the IP the higher the taxes.
This isn't such a crucial issue at the end of the day, I don't think you should be able to copyright a tattoo, the design may change as the person ages, or gets into a crazy accident, or whatever. Heck, when they die and decompose / get cremated it's all gone.
It comes down to how realistic you want the game to be. With games that pitch themselves as the pinnacle of being realistic with improvements made every year, not having the correct tattoos would break the realism. Especially when the most important athlete of his sports generation says that too.
On another note, if I buy a canvas painting from another artist, and then I sell it for millions, but only paid $500 for said painting, can the painter sue me for copyright despite the painting being my property? If not... why are tattoos any different?
I still think it's BS, the tattoo on your body is YOU - not a separate thing to you.
He has enough money for that.
This is silly.
No game developer or otherwise is including an athlete's Tattoo as a selling or differentiation point for a game. Said another way, nobody is buying a game in order to see Lebron's Crown tattoo. If the artwork was original and not-player specific such that a user could purchase it as DLC or something similar to place on a custom character there would certainly be a case.
Seems like the legal construct of body artwork not being owned, but rather licensed to the person who it was tattooed on is the problem.
There seems to be an appreciation of it by those who play the game. The linked video in the article showing Mike Evans tattoos seemed to be newsworthy.
So if someone snaps a photo of him or he is on TV the tattooist is going to get royalties? That goes for anyone else that is tattooed as well.
When will we see that the whole thing is a sham and needs to be abandoned?
https://www.theverge.com/2018/12/20/18149869/fortnite-dance-...
Never, as long as there's enough people getting $$$ from it (and have the power to influence such decisions.)
That has happened before at very least once when Commodore Perry came a-knocking with a gunship to Japan.
Now this will be my argument against having tattoos :)
Why is the tattoo any different?
https://www.thoughtco.com/who-owns-copyright-of-a-painting-2...
The reality of copyright law is that strictly applied pretty much everyone breaks it. Some infractions are worth enforcing, most are not.
If you commission a single work from an artist, then he retains the copyright (unless your contract says otherwise).
So before you spend that $5 million commissioning a painting, have your lawyer look over the contract... likewise, before you get that $50 tattooed bunny on your ankle, read the paperwork, if the artist hasn't signed over the copyright to you, then he owns it.
I would have assumed that the answers to these were both yes, but this article makes me think not.
Or are you saying that the contract must explicitly state what formats are included in the contract?
AFAIK, this still needs to be explicitly stated in the agreement/contract. by default the creator always owns the IP they create (in the US). this is why software companies have to explicitly state that they will own the product of your work when they hire you.
Though it is kind of funny when it goes for a tattoo, just never thought about it. It is not like you want to have contract for a tattoo unless you are LeBron...
Tattoos were used since thousands of years for a particular job (apart of decorative purposes): They excel hiding needle marks. Tattoos with a pattern of multiple repeated x6 or x5 darkened areas arranged in a star or a circle could be particularly useful to mask a weekly routine of steroids delivered around some point of interest. In that sense some designs could be better than other and became equivalent to any other industrial secret for their owner.
And this is only a part of the history. Tattoos showing trade marks or copyrighted art are another problem.