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

[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...