Copyright in Tattoo Case: Escobedo v. THQ, Inc.

December 9, 2012
Excerpt from Escobedo v. THQ Inc. lawsuit including "signature moment" shot allegation.

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


Max Bretos Owes No Apology

February 20, 2012

As the world seems to be aware, the New York Knicks have a new star player named Jeremy Lin.  Not since Patrick Ewing, my fellow Hoya, joined the team have I seen such excitement over a Knickerbocker.  [Full disclosure:  I grew up in NY and I am a Knicks fan.]

Over the weekend, an ESPN writer used the phrase “chink in the armor” for a headline, and Max Bretos used the phrase in a broadcast, both about Jeremy Lin.  It turns out that Jeremy Lin is Asian, and some found this offensive  .  The headline writer was fired and Bretos suspended.  Bretos, against good judgment, has apologized.

 

No apology was necessary or should have been forthcoming from Bretos.

 

It is a race neutral phrase.  Bretos has used it before.  Bretos did not appear to have any racist intent (and the headline writer also denies racism).  The only racists are the ones condemning him.  If you punish someone for speech that is race neutral, yet you find it somehow offensive because of the subject’s race, you are the racist, not the speaker.  ESPN owes Bretos an apology.  So much for judging people on their merits; we are encouraged to judge them on race.  That’s offensive.  If Lin is a chink in the Knicks’ armor, or there is a chink in Lin’s armor, we should be free to say it.


June 16, 2011


Magic Underwear Hoops Dismissal

March 3, 2011

Brigham Young University has dismissed Brandon Davies– integral member of their #3 nationally ranked men’s hoops team, avg. 11.1 pts and 6.2 rebounds per game.

Davies committed a grievous offense to warrant such harsh action by BYU. Best player on the team or not, Davies was dismissed due to his failure to “live a chaste and virtuous life” as mandated by the schools honor code. This apparently unchaste sophomore was “caught” having sex with… wait for it… HIS GIRLFRIEND!

BYU coach Dave Rose gave comment:

“Everybody who comes to BYU, every student if they’re an athlete or not an athlete, they make a commitment when they come… a lot of people try to judge if this is right or wrong, but it’s a commitment they make. It’s not about right or wrong. It’s about commitment.”

Davies will meet this week with BYU’s honor board to discuss the possibility of him remaining at the school and/or his relationship with the basketball team going forward.


Dan Snyder is butthurt, SLAPP suit ensues, Irony meter pegged

February 6, 2011

By Marc J. Randazza

Washington Redskins owner, Dan Snyder, seems to have awfully thin skin for a guy who owns a sports team named after a racial insult.

Snyder filed a frivolous defamation suit against the Washington City Paper (“WCP”) based upon an article “The Cranky Redskins Fan’s Guide to Dan Snyder.”

Snyder accuses the WCP of spreading “lies, half-truths, innuendo, and anti-Semitic imagery” to defame him, seeking $2 million in damages.  The amount is split between two claims, the first for defamation and the second for false light.  The “anti-semitic imagery” he complains of is a crude addition of horns, a unibrow and Anton LaVey-esque goatee to Snyder’s photograph in the WCP, which can be seen here.

No, your irony meter is not broken. It is actually reading 11. A guy who owns the Washington Redskins is complaining that someone created an allegedly racist drawing of him. And, anyone who thinks that “Washington Redskins” isn’t a bigoted term, I used to think the same thing. In law school, I was in a debate with a guy I’ll identify as “Steve B.” I was armed with my free-speech bona fides, and ready to pwn Steve in front of the whole class for being overly politically correct. With his opening shot, Steve looked at me and said “what would you think if they were called the ‘Washington Jigaboos?’ Because the way black people would feel about that is how Native Americans feel about ‘Redskins.'”

I immediately conceded. Steve was right. The debate was over.

Please re-calibrate your irony meters -- Dan Snyder, owner of the Washington *Redskins*; complains that this drawing is racist.

So, the owner of the Washington Jigaboos Redskins is pissy about someone supposedly using racist imagery.

On behalf of Native Americans, up yours, Dan Snyder. Up yours with a cactus grown in the driest part of the Navajo reservation.

But lets get back to the issue at hand:

Dave McKenna’s comprehensive compendium on Snyder’s questionable reputation, which gave rise to this lawsuit, is not the first time he offended Snyder’s sensibilities.  Snyder paints a paranoid picture of McKenna as a conspirator, evidenced in his November 24, 2010 letter to the WCP – sent less than a week after McKenna’s article hit the streets.  Because McKenna mentioned Snyder within the WCP and its blog 15 times in as many months, Snyder believed McKenna was attacking him to please his new bosses at Atalaya Capital, which acquired Creative Loafing and the WCP in August 2009. (source.)

Even so, it appears McKenna gave Snyder a fair shake.  Before McKenna’s article was published, Snyder’s wife went to the local media to defend her husband.  In an interview, she said her husband was now surrounded by ‘better people,’ and that he had ‘grown and he’s evolved.’ (source.)  The offending article even begins with the words “[w]e’ve been told a New Dan Snyder walks among us”!

Nevertheless, lets not forget that Dan Snyder is a wealthy man. He is a fabulously wealthy man. And we all know that the fabulously wealthy often believe that they are above being criticized by the rabble — and when the rabble forgets it, they need only spread their ass cheeks, let a few filthy pieces of silver fall from their milk-fed buttholes, and some swine of a lawyer will be lying underneath, mouth agape, happy to catch what might dribble from the sphincter of privilege — their oath, their ethics, and free speech be damned.

In nicer words, this is a classic SLAPP suit — not filed because it has a chance of success — but filed because the cost of defending it will be punitive enough to remind the little people that people who can afford to use helicopters as personal transportation vehicles do not like to be made fun of or criticized.

The first sign that this is a SLAPP suit? You need go no further than paragraph 1. The complaint states “Mr. Snyder is a public figure. As such, he accepts the right of the public and the press to criticize him or to express personal dislike, whether or not such expressions are justified by the facts.”

Precisely.

In other words, Mr. Snyder is going to need to leap over the “actual malice” standard laid down in New York Times v. Sullivan, 376 U.S. 254 (1964). In that case, the Supreme Court held that the First Amendment required that a public official libel plaintiff must establish, through clear and convincing evidence, that the defendant acted out of “actual malice.” That doesn’t mean that the writer must have acted out of malicious intent, but rather that the defendant published his words “with knowledge that it was actually false or with reckless disregard of whether it was false or not.” Later cases expanded this to encompass defamation suits by public figures, as well as public officials. See, e.g, Curtis Publishing Company v. Butts, 388 U.S. 130 (1967); Gertz v. Robert Welch, 418 U.S. 323, 351 (1974).

Public figures can, occasionally, prevail under this standard. However, the bar is so high that unless the case is flawless, it is unlikely to go anywhere except down the “expensive to defend” highway. Snyder knows this. His attorneys know this. But Snyder is a wealthy man, and his lawyers don’t mind the taste of feces in their mouths, as long as they are licking the foul substance off of Snyder’s coins.

Lets take a look at Snyder’s claims under New York law. New York is very protective of free speech — especially where the news media is concerned. What constitutes a statement of opinion is broad, and can even embrace language that in other states may be defamation per se, such as calling another person “unprofessional.”  See Amodei v. New York State Chiropractic Association, 160 A.D.2d 279, 280 (N.Y. Sup. Ct. App. Div. 2d Dept. 1990), aff’d 571 N.E.2d 79 (N.Y. 1991); Halegoua v. Doyle, 171 Misc. 2d 986, 991 (N.Y. Sup. Ct. 1997); Wait v. Beck’s North America, Incorporated, 241 F. Supp 2d 172, 183 (N.D.N.Y. 2003). (“Statements that someone has acted unprofessionally or unethically generally are constitutionally protected statements of opinion.”).

Despite Snyder’s melodramatic whining about McKenna’s negative opinion of him, even incendiary and inflammatory criticism of a subject is protected rhetorical hyperbole. See Greenbelt Coop. Pub. Ass’n v. Bresler, 893 U.S. 6, 14 (1970); Gross v. N.Y. Times Co., 623 N.E.2d 1163, 1167 and 1169 (N.Y. 1993). Even heavily caustic attacks on public figures are afforded the highest level of Constitutional protection. Hustler Magazine v. Falwell, 485 U.S. 46, 52 (1988).

The second cause of action is a bit trickier.  While the language reads like a false light claim, there’s a wrinkle here: According to the Citizen Media Law Project, New York doesn’t recognize the tort of false light. Costanza v. Seinfeld, 27 Media L. Rep. 2177 (N.Y. Sup. Ct. 1999), aff’d, 719 N.Y.S.2d 29 (N.Y. App. Div. 2001); Howell v. New York Post Co., 21 Media L. Rep. 1273 (N.Y. 1993)  That leaves Snyder with the tort of defamation by implication, which remains a form of defamation and thus subject to the same attacks set forth in the preceding paragraph.

Nonetheless, as the owner of the Redskins, Snyder has access to lawyers and the money to pay for them, and can inflict quite a lot of pain onto the defendants. Furthermore, even if the WCP fends off these claims, Snyder has made it clear that anyone smaller than the WCP had better be worried — criticizing him is not without its significant costs.

Mr. Snyder has more than sufficient means to protect his reputation. We presume that defending such litigation would not be a rational strategy for an investment fund such as yours. Indeed, the cost of litigation would presumably quickly outstrip the asset value of the Washington City Paper.” (source)

Snyder appears more butthurt than genuinely wronged. Unfortunately for him, or fortunately for us all, there still is no cause of action in the United States for intentionally butthurting a rich dude. Unfortunately for us all, win or lose, Snyder and his legal team just turned blew a cold wind across the free expression fruited plain.

J. Malcom DeVoy contributed to this post. Hat tip to Johnny Utah.


Crackdown on Live Streaming of Sporting Events

February 3, 2011

by Jason Fischer

This week, U.S. Immigration and Customs Enforcement shut down a number of websites that were offering live streams of professional sporting events (source).  The central claim was that the video delivered through those websites is protected by copyrights.

While I’m sure there are some hippies those out there who would take the position that a sporting event can’t be copyrighted (I’ve read some off-the-wall legal articles that take such a position), I am firmly in the camp that believes the recorded video is absolutely the kind of thing that Article I, Section 8, Clause 8, was drafted to cover.  My main problem here is that, rather than developing an effective way to reach every viewer who wants to enjoy their broadcasts, professional sports associations go crying to their congressman or the U.S. attorney about how their shitty business model is not making as much money as it used to.

Wake the fuck up, asssholes.  We live in a world where on-demand, high-definition video is a viable option.  I watch crap on my iPad while taking a crap — and I couldn’t be happier that this has become technologically possible.  I should be able to watch whatever I want, whenever I want, and wherever I want to watch it.  If I wanna watch “The Leap Home” at 3:45am on Tuesday, then there’s no reason why I shouldn’t be able to.  Charge me a fee for it; I’m okay with that — but quit complaining about piracy, when you are actively blocking viewers from consuming your product.


Bill Maher must read this blog

January 30, 2011

I hope he does, anyhow.

A few weeks ago, I wrote a piece on The NFL and Socialism. Two days ago, Bill Maher wrote on the same thing, but maybe with a bit more cleverness, here.


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