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Here we'll explore the nexus of legal rulings, Capitol Hill policy-making, technical standards development, and technological innovation that creates -- and will recreate -- the networked world as we know it. Among the topics we'll touch on: intellectual property conflicts, technical architecture and innovation, the evolution of copyright, private vs. public interests in Net policy-making, lobbying and the law, and more.

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February 17, 2005

Tattoo Artist Sues NBA Star for Copyright Infringement

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Back in the day, a tattoo artist quite rationally saw your tattoo as a free advertisement for his art. Not anymore. According to this AP story, the man who put a tattoo on the right arm of Pistons forward Rasheed Wallace is suing to stop Wallace from "displaying" his artwork in ads for Nike basketball shoes. Wallace reportedly paid the artist, Matthew Reed of TigerLilly Tattoo and DesignWorks, $450.00 for the tattoo -- but evidently that wasn't enough. Reed told the Associated Press he "expected to benefit from the exposure."

Over the past year we've unfortunately witnessed some absurd examples of copyright overreaching, from attempts to extort online animators for parodying folk songs to efforts to ban video game players from pretending to be superheroes -- and now the suggestion that athletes should cover their tattooed arms if they wish to avoid lawsuits. Rarely has the need to defend fair use been so vividly illustrated.

For more such illustrations, check out the definitive reference tome, David Bollier's Brand Name Bullies (see J.D. Lasica's terrific review).

(Cross-posted at Deep Links.)

Comments (10) + TrackBacks (0) | Category: IP Abuse


1. Woody on February 17, 2005 1:33 PM writes...

wouldn't this be considered a work for hire, with the copyright assigned to the hiree?

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2. Anonymous on February 17, 2005 4:24 PM writes...

It would probably not be a work made for hire, though you could always find some unusual situation given the Reid factors that caused it to be.

Nor is it likely assigned (n.b. that there is no assignment in a work for hire -- the employer or commissioning party is the author from the beginning as to works for hire, and the person who merely executed the work is nothing) since assignments must be written and signed.

The best bet is an implicit nonexclusive license, or to shoehorn it into an applicable exception, such as fair use.

The best solution though is to scale back copyright law by requiring strict formalities and reducing the exclusive rights of copyright holders.

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3. Rafael Venegas on February 17, 2005 8:33 PM writes...

Let us start with a question. If RIIA can threaten kids that are struggling to pay their college tuition because they copied songs to media that is sold for copying songs, why not sue a millionaire basketball player? Both actions are equally just or unjust in absolute (not legal) terms. Both are either legal actions or blackmail.

The fact is that tatoos are never "performed" but instead are displayed, like a painting. Because they are not performed, the tatoo artist cannot have any expectation to derive income from the performance of the tatoo. On the other hand a person that buys a copyrighted work that cannot be performed (like a song) but can only be displayed (like a painting) has a natural expectation that the work can be displated in a private or a public (for profit) place without having to have a license from the artist. This is why many corporations buy art, to display them in their lobbies with the expectation that an impressive lobby will lead to higher sales.

A claim for payment for the display of a work of art that was paid for is copyright nonsense. Of course if the nonsense can be profitable for a lawyer a nonsense lawsuit will be filed. And a judge will take 5 years to decide because there is no jurisprudence. The copyright law is confusing in that it makes no distinction between performance and display. And a long case is good also for the defense lawyer.

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4. Ronald D. Coleman on February 18, 2005 1:24 PM writes...

Let us start with a question. If RIIA can threaten kids that are struggling to pay their college tuition because they copied songs to media that is sold for copying songs, why not sue a millionaire basketball player? Both actions are equally just or unjust in absolute (not legal) terms.

I can't agree. Surely you aren't suggesting that the fact that song downloaders have little or no money should have any affect on their liability for copyright infringement? It's simply not a relevant inquiry.

I agree however with the thrust of all the commenters here that this is absurd overreaching, although I am not sure that is crystal-clear under the law. But I would bet on Wallace in this one (and against the poor, struggling music downloaders, if I'm betting). I particularly like your analysis of how art is displayed, not performed (unlike music).

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5. Rafael Venegas on February 18, 2005 4:00 PM writes...

"I can't agree. Surely you aren't suggesting that the fact that song downloaders have little or no money should have any affect on their liability for copyright infringement? It's simply not a relevant inquiry.".

You are right it that it should not be relevant. But the legal legal world is imperfect and nothing is, as you say cristal clear. Actually it is very muddy.

If I have learned something about lawyers, it is that if anyone is going to sue, one the first thing that must be determined before suing is the ability of the sued party to pay damages and legal costs. Else the lawyers’s client may win the case but wind up loosing, economically. Suing people without knowing about ther economic ability is a losing proposition. The only reason RIIA is getting away with their lawsuits against kids is because they ask for a settlement that is below a lawsuit defense threshold, $4,000. They know that any lawyer will advise, the threatened party, correctly, to settle.

As to the liability for copyright infringement and for how much money, well that is a very questionable issue, particularly when the law is unclear about what is infringement and how much an infringement is worth and the law (and related jurisprudence - a bowl of spaghetti if I may say so) is not accessible and is not interpretable by non lawyers. It is not even understood by judges. A recent judge decision in a case where I am the plaintiff, the Federal District Court judge decided that two music publishers (one is a very big one) that in plain sight stole and licensed to other over 500 songs (many of which 80 were registered at the Copyright Office) that belong to my siblings and me did not commit infringement. So this is the story: if a kid that never saw the copyright law copies a song without the owner’s permission that is infringement but it a music publisher steals songs and authorizes another to use the songs and gets paid for it, that is not infringement. The details are available in my web site, where I identify over 200 errors made by the federal kudge. Something is goofy here.

The point: The legal system should not be after kids (even millionaires) that copy songs any more than after my neighbor that took (RIIA would say stole) a flower from the garden in the front of my house without my authorization. Suing customers, current or future, is just as foolish as suing neighbors. It poisons the air we all have to breathe, which is what the tattoo artist is also doing. The legal system simply needs to have it’s priorities straight. I hope the case gets summarily thrown out.

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6. Neo on February 18, 2005 10:10 PM writes...

"Something is goofy here."

Yeah -- the judge was bought.

Funny how it looks like when the dust settles and the law gets clarified, it's going to look like this: "If the little guy does something the big guy doesn't like, it's infringement. If the big guy does something the little guy doesn't like, it's business."

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7. Branko Collin on February 19, 2005 7:55 PM writes...

The way I read it, the tattoo artist is sueing Nike because they prominently display the tattoo. The art is appropriated by Nike to sell more stuff. That's different from, say, a clip on a sports show where the camera cannot avoid getting some of the tattoo in the shot some of the time.

(I believe in the Netherlands there is some jurisprudence about this, where photographers who tried to make a nice shot by positioning an interviewee in front of a pretty painting, got to pay "damages", because their photo was a derivative of the painting.)

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8. Rafael Venegas on February 20, 2005 8:08 AM writes...

Deciding that a tatoo cannot be used "commercially" without the autorization of the tatoo artist is absurd. That would mean that the owner of the tatoo, who paid for the tatoo would be a slave to the tatoo artist if he/she wanted to be a saleperson or a model or an actor or a basketball player. So now there would be two reasons for the tattoed person to be unemployable, salepersons with visible tatoos are no-no in the trade and now there is the copyright infringement issue.

Declaring a that a photo of a person in front of a painting is a derivative work of the painting is a duvious and wrong decision with many ramifications that limit the liberty of photographers, tourists, painters, newspapers, television broadcasters, etc. Since almost anything that is seen may actually be a copyrightable (or patented or trademarked object - a ridiculous proposition that is legally true due to the ridiculous expansion of IP rights) and there is no practical way to determine that what is seen is in the copyright duration period. For example, in the U.S. if the painter had died 70 years before the photo of the painting was taken, the photo would be legal but if the painter died 69 years earlier, then the photo would be an infrigement and the photographer is thus a criminal under the law. Why, that could be me!

BTW, I have never seen a painting with a sign saying the painting is not yet in the public domain or that photgraphing it is prohibited because it is not in the public domain.

Some final questions about tatoos: When a tatoo is erased, is that a moral right's violation of the artist and is permission of the artist required before the tatoo is erased? Is tatoo editing (to improve it) legal? Will the NBA prohibit tatoos so that the games can be seen by the fans? When Joe has his girl friend's photographed face tatooed in his arm, who owns the copyright, Joe, his girl friend, the photographer or the tatoo artist and is it copyright infringement? Can tatoos designs that only exists on a person be registered at the Coyright Office and if yes, who is the owner, the tatooer or the tatootee? If the duration of a tatoo copyright 70 years after the death of the artist or the death of the tatootee? Are not tatoos works for hire that belong to tatooees? And what about tatoos made in a foreign country, what laws apply? Do import taxes apply? Should potential tatooees first visit a tatoo copyright lawyer? Certainly yes. So should the tatoo artist before entering the business, but one that does not work for the customers.

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9. Kalle Kapteeni on February 24, 2005 9:36 AM writes...


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10. Alex T on February 24, 2005 3:19 PM writes...

Actually a painter does have the right to sue for copyright infringement if their artwork is being displayed without their consent. I think its kinda BS because i agree that i never have seen an artist argue about having their art being shown to MILLIONS OF PEOPLE ALL OVER THE WORLD ON TELEVISION. I don't know about tattoos though because wallace paid to have someone draw something on his arm so that he can go do whatever he wants with his arm. There was no contract saying that the artist had to be paid for Advertising and performing copyrights. So yea i agree that its more like a work for hire artist. he gets paid to do something that wallace gets to keep. i have to deal with this kinda stuff cause i do music production so that legal kinda crap comes up all the time. So yea the tattoo artist is just a little douche bag trying to get recognition for drawing a tattoo that a multi-million dollar player wanted. basically shooting himself in the foot. Real artists do it so that it can be appreciated wether he gets paid for it or not. Now if you want to get paid for having a drawing of yours put on tv then become an advertiser.

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