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Comment by wccrawford | Hacker News Reader

"Lawyers generally agree that an implied license allows people to freely display their tattoos in public, including on television broadcasts or magazine covers. "

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.)

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  If it's legal to do it in photos and videos,
  it's legal to do it in 3D models.

Perhaps it ought to be by extension but apparently it's far from a settled matter.

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.

A photographer has to deal with publicity rights as well.

Not just copyright law. Look at the difference in laws being recording a video of a person and recording sound of the same person. I would love for law to be consistent, but as of yet there is no such requirement.

For more headfuckery, try to work out if you can record a video of the soundwaves.

You can. You record a high definition video of items and can possibly determine the sound waves from the movement of the items. I've already seen demos of this tech where you can restore the majority of a transcript of a visually recorded conversation.

You technically can, but then it becomes illegal in most states.

Is there any case law on this? Given it is a recording of video, not audio, how does the law treat the ability to convert video into audio? This would make most video recordings where audio is illegal to also be illegal, if it is so directly applied.

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)?

I assumed the post I responded to discussing actually converting it to audio rather than merely recording something that could theoretically be converted to audio. In that case, it's just a different type of photo-microphone, which is well established as audio recording.

Definitely, if they agree that they maintain freedom of their likeness for photos and video, how does that not extend to any medium where the person is expressly licensing their likeness? You aren't reproducing Lionel Messi's tattoo, you are reproducing Lionel Messi.

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.

A tattoo artist doing this seems to me to be a good way to damage that artist's reputation. Why get a tattoo from an artist who has demonstrated willingness to sue over representations of you??

He probably thinks that he can get (relatively) FU money by suing.

From the article, the artists claim that they were approached by a firm to buy the copyright to the tattoos for a clothing line and then once the deal was done, the firm went after 2K, they say they didn't actually intend for this to happen, and they don't own the copyright anymore.

So basically the firm acted really scummy, and probably intended to go after 2k the entire time, but sold it to the artists as 'clothing line'...Is anyone really surprised?

Right, we just need to have a sane court agree that this is the case. Some people saw dollar signs and were able to use the absence of precedent on this question to snag some of them.

> 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.

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.

You are suggesting that since it’s legal for me to share a fanphoto of myself and Mike Tyson, then by extension I should be allowed to use his likeness in a 3D model in a computer game. If rights did really get passed on that loosely, then celebrities would have no way of monetizing their own brand.

That’s not at all the same.

>You are suggesting that since it’s legal for me to share a fanphoto of myself and Mike Tyson, then by extension I should be allowed to use his likeness in a 3D model in a computer game.

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.

It doesn't seem that simple. If I get a tattoo of Star Wars or R2D2 or Iron Man there's arguably something not 100% "It's now mine to do whatever I want with". I'll get a tattoo of Darth Vader on my back, take a picture, print it on a cereal box and sell Darth Vader cereal.

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?

>If I get a tattoo of Star Wars or R2D2 or Iron Man

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.

Wow, you completely and utterly missed the entire point of everything I wrote and just made up strawmen

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.

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