Excerpt from Escobedo v. THQ Inc. lawsuit including “signature moment” shot allegation.
A tattoo artist sued THQ, Inc., the makers of a UFC themed video games, for copyright infringement. The artist tattooed a lion on Carlos Condit’s torso, and claims that it was his original creation. (Complaint at 12) The artist alleges that he created the original design, and owns a registration for the copyright to the design. (Compl. at 16). He claims that by using the work in a video game, depicting Carlos Condit, THQ infringed upon his copyright in the work.
The artist’s attorney said, in a press release,
“People often believe that they own the images that are tattooed on them by tattoo artists,” explains Speth. “In reality, the owner of the tattoo artwork is the creator of the work, unless there is a written assignment of the copyright in the tattoo art.” Escobedo and Condit never had a written agreement. Thus, claims Escobedo in the lawsuit, he remains the owner of the copyright over the image he drew.(source).
Nothing in this statement is false, but that doesn’t mean that this gets you to the correct answer. Here is the correct answer:
1. Ownership of the copyright: If the tattoo artist designed the tattoo, unless the tattoo artist signed a “work for hire” agreement, then the copyright in the tattoo is, presumptively, his intellectual property. No question about it. Therefore, I can’t take a copy of that tattoo and make posters of it. Nor can Condit. I can’t re-license it to other people. On ownership of the copyright, I think the artist wins, hands down.
But, that doesn’t mean that he wins the case.
2. Fair Use: I see very little room to argue that THQ’s use is not fair use. THQ has the right to use Condit’s likeness. That likeness happens to have been augmented with someone else’s copyrighted work. The copyright owner can no sooner prohibit this use than he can prohibit me from using it demonstratively as I have in this piece (doubly so, since I clipped it from his complaint). THQ can’t accurately depict Condit without the tattoo. THQ can not be prohibited from depicting Condit accurately, just because the artist wants more money.
That said, there might be some theoretical claims, but not against THQ.
Condit himself might (I stress MIGHT) have some liability. This is a highly theoretical argument – but I presume that Condit got paid for the right to use his likeness in the video game. Lets say that the agreement has a clause that states that Condit has the legal ability to transfer or license all relevant rights. There *might* be an argument that Condit did not have the right to assign the rights to the ink, and thus the artist gets a portion of Condit’s profits. Again, theory here, and not likely. But, if I had to save the case, I’d argue that.
Right of Publicity: The tattoo has now become part of Condit’s persona. So, could copyright actually limit his right of publicity? Again, an interesting egghead argument to be merged with #3, but essentially, if the artist prevailed against Condit, it would mean that anyone who gets a tattoo without a work for hire agreement has mortgaged a certain portion of their publicity rights to the tattoo artist. I am not seeing that as a winning theory.
Bottom line: Fair use, artist loses. Creative arguments could revive the case under some exotic uses of state law claims, which would (at best) be against Condit, and for a small fraction of what Condit himself earned, but even then, I can’t see them carrying the day.
The case is Christopher Escobedo v. THQ Inc., 2:12-cv- 02470-JAT, U.S. District Court, District of Arizona (Phoenix).
H/T: TechDirt
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The Legal Satyricon 
I would argue that Right of Publicity would quickly become an important point, as Carlos is a UFC fighter, he is required to wear minimal clothes. Win or lose, pictures will be taken of him and the tattoo would be in them. If the game constitutes an infringement, any photos taken probably would too, thereby requiring Carlos to have to dress before any pictures could be taken, or stop fighting altogether. I’m pretty sure that would constitute an unfair obligation as it would cost Carlos either his job altogether, or valuable publicity. Has anyone ever seen a promotional poster or billboard for any kind of professional combative sport with a fully dressed athlete? Pictures in the paper are necessary to bring in ticket sales, pictures influence revenue. I think Escobedo would end up having to prove that his tattoo had an influence in Carlos earning that revenue and that he therefore deserved a cut. It’s probably the same for the game. Are people buying it because Carlos is in it, or his tattoo?
I am SOOO not a lawyer.
I wonder if this tattoo artist is as protective of other people’s intellectual property as he is of his own. Every tattoo parlor I have ever been in, and there have been a few, has dozens of albums of the artist’s works and always includes various tattoos of sports team logos, car and truck logos, cartoon characters, etc. It would seem to me that a tattoo artist tattooing the Tasmanian Devil chugging a bottle of Absolut on someones arm for profit is more of an infringement than what Escobedo is claiming. This case should be tossed out of court pronto but Judge’s these days have no balls and are quick to say to “question of fact” rather than have to actually make a decision. Guess time will tell.
[…] As attorney Marc Randazza noted in a brief analysis of the situation: […]
Rather than fair use maybe this is the case to limit the accelerating trend toward private ownership of everything . I would suggest that any intellectual property inseparable from the human being is subject to an implied license, and that this license can only be negated or revoked by a signed writing by the tattoo-ee acknowledging his or her non-ownership (or the artist’s ownership.) Otherwise the entertainment industry is going to grind to a halt while everyone runs around getting licenses to depict clothing, shoes, automobiles, eyeglasses, wristwatches. Equity should not tolerate such nonsense. Among the other interesting possibilities in this case might be a claim by the game manufacturer against the performer–not named as a defendant–that he breached his employment contract/release granting all rights in his name and likeness to the game company (if in fact he signed such a document.) Or should entertainment companies require all performers to represent and warrant that they own reproduction rights in their tattoos? It’s in everyone’s interest to straighten this out as soon as possible.
Assume that the tattoo was not a work for hire. Sure, you can say that the person who got tattooed paid for it, you can say that the person tattooed directed the work in that he selected the subject, the general outlines of the depiction, the working hours for the tattooing, and all that. But if you said those things you would destroy my assumption that it is not a work for hire.
Instead, consider the claim itself. Essentially, were we to accept the artist’s claim, no person who had a tattoo could go out in public without covering the tattoo. Otherwise he would be usurping the artist’s right to publicly exhibit the work.
Is this copyright mis-use? Tattoo recipient can no longer show even innocuous flesh in public. That’ll come as a surprise to the thousands of sailors across the state.
Credited response.