Who's going to win? Fan Art Copyright court case over reference photo

[KayPotter]

Oof!
Tricky! I think that the photographer has a valid point here!

[NessIllustration]

I think the photographer will win. It definitely seems like straight-forward copyright infringement. The Instagram post even shows that the printed photo is being used as reference, that's pretty damning! Sure it happens all the time with tattoos, doesn't mean the law still can't be enforced if someone chooses to exercise that right though. It's kind of like downloading TV shows or movies for free online: just because so many people do it, doesn't mean it's legal.

[davidhohn]

@sigross said in Who's going to win? Fan Art Copyright court case over reference photo:

https://petapixel.com/2021/02/15/photographer-sues-kat-von-d-over-miles-davis-tattoo/

Oh boy . . . yeah I do like cases like this.

So here's a pretty clear opinion on copyright and tattoos from an IP attorney:
https://whhlaw.com/tattoos-copyright-laws/

My understanding of copyright and general creative ethics agrees with the attorney (as well as everyone on this thread) that Kat Von D is simply copying a photo. There is little to no creative choices being made here, and therefore nothing about this tattoo that that could be protected by copyright. This is an infringement.

The OP article suggests that Kat Von D's possible defense will be the "transformative use" aspect of the Fair Use Defense. I will allow that there might be some aspect to tattoos that I don't fully understand that requires a level of creative choices -- but I would be very surprised if I found it persuasive.

It's interesting that this article https://copyrightlately.com/kat-von-d-copyright-infringement-miles-davis-tattoo/ (link via the OP article), focuses on what might happen to the tattoo industry if Seldik prevails.

In it there's lot's of projected concern about photographers (somehow) controlling the photos and lives of people who get tattooed with the photographer's photos. But it ignores a very simple solution to this -- get permission before you stick someone else's photo on your arm! There was a time when tracking down the creator of an image was hard -- but it's a snap in the internet age.

To that end, if a case as (seemingly) clear cut as this results in a "fair use" finding on behalf of Kat Von D then we need to look at clarifying and amending our copyright laws, as an infringement like this opens the door to rendering copyright protections effectively useless.

[sigross]

@davidhohn Personally I do side with the photographer on this one regarding it being a derivative work. But I'm a bit alarmed about some of the things in the case. Like potentially tattoo artists having to give credit to the photographer and tattooing the copyright notice under it. Like if it was printed in a magazine/newspaper! I think that's going a bit too far.

I think it being on skin isn't transformative enough because it's not the surface that makes the creation transform as she's still copying the same pose from the photograph. If I painted that image on the side of a brick building as a spray paint mural, that would be a difficult task. But I still think i'd need to pay a license to use it. Or at least change the pose and composition.

[sigross]

@davidhohn Would it be possible to force a tattoo removal?

Removal of Content Management Information
In addition to copyright infringement, Sedlik also asserts a claim for violation of 17 U.S.C. § 1202, which prohibits the knowing removal or alteration of “content management information” (CMI) with the intent to conceal infringement. CMI generally extends to such information as the photographer’s name and any copyright notices appearing on the photo. Generally, section 1202 claims arise in the context of removing credit information from photos which are then published on websites or social media.

I’ve never seen a 1202 claim brought in the context of a tattoo before. If it’s valid, this would mean that tattoo artists would need to include credit and copyright information on their clients’ skin, or else face additional liability. And while this may be a stretch, it could also potentially raise a 13th Amendment issue to the extent that it suggests that the copyright owner has the right to ensure that a tattoo subject is forcibly branded in order for the artist or subject to avoid liability.

[sigross]

@NessIllustration Yes it's like where I've hear a lot of "why would I buy digital art when I can just right click save?"

[davidhohn]

@sigross

Would it be possible to force a tattoo removal?

I would think -- no. That strikes me as unreasonable. I've never heard of a copyright case in which this was ordered by a judge. I won't rule out the possibility though.

What's at issue here isn't the image itself on the skin of the guy. Rather it's the reproduction of the image in photos and being actively used by Kat Von D to promote her business. Note that Sedlik did not include the guy with the tattoo in the lawsuit. In fact I'd bet, if asked Sedlik doesn't want to involve that guy at all.

But I'm a bit alarmed about some of the things in the case. Like potentially tattoo artists having to give credit to the photographer and tattooing the copyright notice under it. Like if it was printed in a magazine/newspaper! I think that's going a bit too far.

I would agree, if that is what a finding in favor of Sedlik meant. But it's not.
Let's break that down a bit:
What is required by copyright law is that you get permission from the IP owner before creating copies or derivatives.

Now part of that permission might be that the IP owner asks that a credit line be included so that potential other clients would know who created the image. Part of this is pride in the work, but a fair amount is simple promotion.

But a credit line is not required by either the IP owner or the magazine.
(BTW this is only true as of 1989. Before that if you wanted to maintain your copyright the IP owner had to include a symbol and the artist's name on the original and all copies of art. Now the copyright law inherently assumes the creator is the owner of the copyright)

So the article author who is imagining a scenario in which people are tattooed with credit lines is letting his fancy run away with him.

In practice a credit line is simply one of many details that would be clarified during the permission process. My guess is that most photographers (or any artist) when asked if their image can be tattooed onto someone would not require a credit line. (that just feels weird to me too)

But in the rare case that a photographer insisted on a credit line, then it's up to the person getting the tattoo to decided if they really want that image on their arm. After all they can always say "No thanks. I'll use a different image"

[Lee White]

oh man, this is a good one! I side with the photographer as well. I mean, this screen shot in the lawsuit where she is TRACING the photo is almost enough by itself! haha!

[sigross]

Oh yeah that tracing will defo not help Kat win the case.

Who owns the actual tattoo? I understand the design tends to be in the hands of the artist. But the tattoo surely must be under the ownership of the person who's body it's inked on. If Kat Von D loses the case does the design become unusable or can the result of the case include paying a license fee to use the design on another body (although she probably won't want to see it again).

[NessIllustration]

@sigross I think in this case the body is the "surface". When you make a painting, does your canvas need ownership of the copyrights? Kat Von D, as the artist who performed this infringement, is the one targeted by the lawsuit.

[sigross]

@NessIllustration But I think a tattoo can become part of someone's identity. The skin is the biggest organ on the human body. It's alive. Tattoo ink is injected into that organ and becomes a part of it.

Like Mike Tyson's face tattoo was in a lawsuit after the Hangover movie used it on a characters face in the film. There are sportsmen who get image rights in computer games and their tattoos become an aspect of their likeness. If their tattoo wasn't included in the game some of those people wouldn't be recognised.

Not saying the person who has the tattoo on their body should be in this lawsuit but they could be affected in the future by the results of this case.

Tattoo copyright cases:
https://www.hollywoodreporter.com/thr-esq/tattoo-artist-looks-show-value-625509
https://www.lexology.com/library/detail.aspx?g=0530aa49-8fd3-403f-ae8b-8f4decaed7bc

[carlianne]

I asked a friend of mine who is a copy-right lawyer, and her bet is that the photographer would win if it goes all the way, but that they will probably just end up settling outside of court.

[LouD]

@sigross The wearers of the tattoos aren’t involved in the cases you mentioned. In both, the tattoo artists sued the movie/video game companies. The artists argued that they own the copyright of the design, not the person wearing it, and that the agreement made between tattoo wearer and the media company to reproduce likeness did not include the rights to reproduce the tattoo. Both cases settled out of court, with the media companies paying the artists money.

For the Hangover case, I believe the issue was not about Mike Tyson himself appearing with the tattoo, but another actor with the design recreated on his face. The artist wasn’t arguing that Tyson couldn’t show his face on film or anything to do with his body.

There was another case last year between tattoo artist and a video game company that licensed the likenesses of NBA players. The judge ruled in favor of the video game makers because the work was transformative enough, and also agreeing with you, the tattoos are included in the person’s likeness. Here’s a Sports Illustrated article about it: https://www.si.com/nba/2020/04/06/nba-2k-ruling-tattoo-artists

It would be interesting if the guy wearing the Miles Davis tattoo appears in a video game, and which artists would get to try to sue the video game company haha

[agan]

This is one of those situations where I know I'd feel like I was being unfairly treated if I were the photographer, and also disproportionately blamed if I were the tattoo artist. I recently watched this video on tracing which presents a more nuanced perspective than I've seen before. I didn't realize how it's often quite difficult to find original photographers in a lot of situations, like when the photo has been reposted through instagram so many times without leaving a trace of the original account. (Though, in the case of this particular Miles Davis photo, I did a google reverse-image search that brought me to the photographer's website fairly quickly).

[NessIllustration]

@agan I would imagine if you're unable to find the original owner, then you should just not use it and find something else right? It's still not okay to steal just because you can't find the original owner...

[agan]

@NessIllustration Sure -- I see that. And also, the illustrator in the video I linked kind of suggests a compromise where when you can't track down the original photographer, you attach the original photograph you used as illustration reference. I definitely know if I saw a tattoo out there of one of my pieces of art / photographs, without any reference to me, I'd be incredibly upset.

[davidhohn]

@agan What part of the video you linked do you feel applies to this conversation?

I ask because I got about 15 min into the 55 min video. Biana Bova seems to be focusing on tracing as a teaching tool -- which is fine and no one would take issue with from a copyright POV.

I did continue watching but skipped around. As I watched I realized early on she is misinformed about a number of legal issues, citing people who are not IP attorneys and muddying underlying copyright concepts.

I'm just wondering how you would feel disproportionately blamed if [you] were the tattoo artist? Do you feel that Kat Von D is being disproportionately blamed in the OP?

Does Biana Bova's tracing video get into the "art" of tracing as compared to the "act" of tracing? The distinction for me is one which involves a level of creativity (potentially copyrigtable) and one which simply transcribes the creativity of another artist.

If you can make it a bit easier on me my citing the time stamp in the video I'd be interested in viewing it. As I mentioned in my earlier post:

I will allow that there might be some aspect to tattoos that I don't fully understand that requires a level of creative choices

[davidhohn]

@NessIllustration wrote

I would imagine if you're unable to find the original owner, then you should just not use it and find something else right?

I would agree with you -- but not everyone does. And some of those "everyones" are big companies with very deep pockets.

I'll play devils advocate here and mention a situation in which finding something else isn't an option.

I don't know how many of you are aware of the Orphan Works bill that has been introduced to congress a number of times over the last 15 years.

Definitely worth educating yourself on this concept as it has the potential to alter the art community in both good and bad ways.

A shorter Communication Arts article written by Tad Crawford that highlights the problems with the previous versions of the Orphan Works bills

TLDR: There are genuine cases in which it is in the public interest to make infringing copies of films, photos, recording, and artwork because the original work is decaying and may eventually be unavailable to make a copy AND the IP holder simply can't be found. But these are very limited and specific cases.

The Orphan Works bills, as they have been previously introduced, applied a sledgehammer to a job that requires a scalpel. Previous versions of the bill would have effectively gutted the protections of copyright allowing everything to be deemed an "orphan work". I have been one of many freelance illustrators who have repeatedly written to the US Copyright Office to oppose the legislation as it was written.

BUT the problem of genuine orphan works remains, and I would expect the bill to be reintroduced in the future. Ideally it will be in the form of a very specific and limited (scalpel-like) form the problem warrants.

[agan]

@davidhohn Ooh yes I guess the parts of the video I found most relevant were from the 41 minute mark onwards, where she was talking about all the cases of photography on social media I hadn't considered before -- like when the original poster's account has been removed/privated, the original poster can't be found, the model can be identified but the photographer can't, indigenous and tribal photography where often neither the models nor the photographer can be identified, etc. I thought perhaps tattoo artists run into this a lot, and maybe that's why some of them stop trying to find sources altogether (although of course, they shouldn't). And thanks for mentioning that the poster's understanding of copyright law isn't correct in places...that's not good I really appreciate you watching the video and letting us know what you think!

And I think it's also worth noting that she mentions the reason that citing photographers seems to be so difficult on instagram is because other people don't think of some sorts of photography as "art"...so others don't cite it...and then yet others don't cite it...and so on with the vicious cycle. It's definitely a cycle I'd love to see stopped, so if cases like this Miles Davis one bring that to public attention, then that's a great result to come out of it.

Admittedly, the case of Kat Von D, like I mentioned before, is a different one, where she could have cited the photographer. The reason I empathize is because I was wondering if maybe the reason she included the original photograph in her post with the tattoo was a standard practice she had to make sure her audience knows she wasn't the originator of the tattoo art. Getting permission from the photographer, of course, would be miles better. And as I understand it from your earlier post, even just creating a tattoo straight from a photograph without permission is copyright infringement.

And that's a shame about the Orphan Works bills -- I read what you attached and that's very worrying...