The reification of intellectual property will go down as one of the greatest blunders of this period in history.
While a fair use defense in the case of family photo would seem like a slam dunk, the commercial nature of this use means that the tattoo artists are more likely to succeed. Although an argument could be made that there was an implied license. In the future I predict that NBA stars at least will ensure that they purchase reproduction rights with the tattoo so that their ability to market themselves to advertisers is not impaired…
Whats the difference between a tattoo, and, say, a picture of me wearing a fancy shirt with a big silk-screened print on it?
Ok, this sucks for those already bearing tattoos, but this is easily remedied going forward, especially for those public figures with the ability to obtain competent legal advice.
Simply put, only do business with a tattoo artist who is willing to sign a copyright assignment, assigning all rights in the design to the customer.
Sure, this may drive up the cost of the tattoo, but from an economic standpoint, it may be worthwhile for certain public figures (e.g., athletes) to pay such a premium, so that they can provide the necessary representations and warranties to a game publisher that they are able to license their “full” public image (third-party images included).
Or just don’t get tattoos in the first place.
Even better, have the game publisher make alterations to the tattoo on the avatar – just enough to avoid copyright infringement. Do gamers really care that the ink on their digital LeBron is precise?
Eh, the law is usually actually reasonably reasonable about most things (particularly fairly old laws). There is probably a way for a sane judge to say “if you don’t want your artwork copied around widely without compensation don’t attach it to famous peoples bodies”.
Whether that happens…
I was wondering if it might fall under work for hire.
First link I found suggests not.
Well, are you recreating either one as a digital image and selling it as a copyrighted product for insane amounts of money to overprivileged children? Are you willing to aggressively prosecute said children if they illegally make and transfer copes of your product to other children?
Because if you make a picture and give it to your friends or set it on your mantle and generate no profits, that’s one thing. If you go around selling your picture of somebody else’s art and filing lawsuits against anyone who takes a picture of your picture, that’s a whole nuther thing. Right?
I’m somewhat surprised to see Cory taking the part of a 2 billion dollar multinational that is pretty clearly in favor of increased enforcement and penalties for intellectual property violations.
I have an idea, just go around and ask 10,000 people at random what they think about this story, and if more than half of them respond ‘This is asinine’, then those asserting copyright can fuck off.
Because that right is trumping the individual’s right. I don’t really care if EA loses, except that it sets a precedent for a tattoo artist to have claim over the image reproduction rights of my likeness.
When it comes to tattoos in videogames I’d say have the publishers design slightly different tattoos (and hope the fan backlash isn’t too bad).
But, there’s a bigger problem for these athletes. If they can’t have their tattoos in games because of copyrights. The same would go with having them photographed or videotaped. As long as that material is not “fair use”, the same copyrights would be in effect as with games. Meaning the athletes would have to give tattoo artists a piece of the pie every time the tattoo is visible in say a commercial or on a TV appearance.
And why stop with athletes, rock stars often have tattoos… Hell, everyone has tattoos these days. Let’s get money from everyone.
A sane judge would not set a precedent here.
Could this go off the deep end and include plastic surgeons and “their rights” over boobs & noses & all the nip/tucks they perform - how many nip/tucks before the surgeon “owns” your likeness?
How different is a nip/tuck from a tattoo, really? Both are artistic in nature…
I think perhaps Take2 tried to get out in front of this, the artists owner consulted a lawyer and a potential goldmine was discovered. Imagine if this is settled in west Texas - maybe they’re conservative enough to look down on tattoos and rule against them.
@jeffreyfisher a “sane judge” that’ll be the day - they are such an extreme minority.
Nah, things would be a lot worse if most judges were not sane
In fact I think part of the problem is that so many people think our legal system is a lot more messed up than it is. Makes them believe all sorts of nonsense threats.
Things are already bad enough
No, the WFH rules are pretty stringent. So much so that, even in a scenario that ostensibly falls well within the WFH regime, I still insist on a pour-over full assignment (the old belt and suspenders method of CYA). Not worth taking a risk, and the employees don’t mind signing a slightly longer agreement.
All rights is not needed (and in some legal systems not possible). But we do have a rather successful license for this kind of issue : )
I’ve actually found more often than not that judges are pretty reasonable on average, but they rule according to the law. Americans in particular think judges and courts are magic, and then act surprised when the laws they didn’t care about when they were being passed come back to bite them in the ass. My favorite (sad) story was about a man in Texas who was injured by medical malpractice and won a magnificent judgement that would cover all of his injuries, which the judge reduced to the legal maximum in the state, because that was the law. The man, confused, asked what law that was, and when his lawyers informed him, he said he had voted for it, but he voted for it to stop people cheating the system, not people like him.
Judges work with what you give them, and between mandatory minimums and tort “reform,” it’s astonishing that people don’t realize how much we’ve tied their hands.
Well, I would hope that Cory analyzes such issues from a legal (and possibly public policy) point of view, and not merely placing his thumb on the scale in favor of the little guy. Sometimes, the multinational publisher is both legally and morally correct.
Am I being too naive here?
Good point! As a copyright lawyer, I like to get the biggest bundle of sticks I can get, since you never know when they will come in handy, but I gladly concede that a perpetual, non-exclusive copyright license (or similarly appropriate CC license) will probably do the trick here.
and lawyers keep wondering why no one likes them? : P