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

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

Roger Clemens Indicted

A Washington Grand Jury indicted Roger Clemens for lying to Congress in a deposition and in under-oath testimony before a congressional committee. He falsely denied, while under oath, ever using steroids. Clemens faces 30 years in jail and a $1.5 million fine. (source)

And after that, when he finally dies and goes to hell, he will be sentenced to a demon shoving a pineapple up his ass every day for all eternity — for the crime of wearing pinstripes after being a member of the Red Sox. Yeah, fuck you too, Johnny Damon.

The world cup’s financial motives

By J. DeVoy

South Africa is a nation long plagued by strife and difficulty, and still today it has one of the highest crime rates in the world.  The country has had tremendous difficulties preparing for this year’s World Cup in Johannesburg, which almost seems like a cruel joke the Fédérdation Internationale de Football Association (FIFA) played on the struggling state.

One reason why they may have done it: member nations could profit off the instability.  By painting feel-good stories about the importance of the World Cup to South Africa, the true costs of the project have been hidden, as well as the identities of those who profit from the event.  Merely insuring the event will bring $9 billion in policy fees to insurers in more developed nations.  Although the current financial crisis and need for liquidity by these agencies wasn’t obvious in 2004 when South Africa was announced as the event’s host, its long-standing instability was no secret then, and the likelihood of profit was high, even on just this one front.

It sounds like a conspiracy theory until one digs deeper and realizes that FIFA has been accused of exactly this behavior.  Excepting America, the countries with the largest insurers are quite active in FIFA, and rational outsiders to football culture such as Wall Street could be convinced to see the financial benefit from having the event in the least developed location possible, as all varieties of debt, credit and equity would be necessary to make the infrastructure improvements needed for the competition to occur.  Those who would dismiss this as an errant deed of FIFA or an isolated symptom of transitory bad leadership are foolish to ignore the entire culture of corruption in international sporting organizations, as the International Olympic Committee was recently busted for similar conduct spanning many years.

IOC Uses DMCA to Suppress Luge Accident Video

by Jason Fischer

The opening day of the 2010 Winter Olympics was marked with tragedy when 21-year-old Georgian luger, Nodar Kumaritashvili, was involved in a fatal crash during a training run. The horrific event dampened the spirit of the international competition and colored the mood at the opening ceremonies later that night. As anyone would expect, the International Olympic Committee (IOC) sprung into action, responding to the accident with a multi-point plan:

• Shut down the luge track to prevent any more deaths… check.
• Conduct an internal investigation… check.
• Let an “independent” authority do its own investigation… check.
• Make immediate modifications to the luge track to stop future accidents… check.
• Make a press release, expressing regret, but denying all responsibility… check.

All perfectly acceptable anticipated responses. So why is this an IP story, you ask? Well, when the above-described actions failed to push this embarrassing catastrophe under the rug, the IOC turned to their attorneys, asking what else could be done to hush the whole thing up. Video clips of Kumaritashvili losing control of his sled and crashing into a steel pole were popping up all over the internets, repeatedly showing the world what happened. The answer from their legal team: Those people are violating our copyright in that clip! We can use the Digital Millennium Copyright Act (DMCA) to have that material removed from the web — so no one else will see it!

Now, giving the IOC the benefit of the doubt, I’m sure their intentions in suppressing the accident footage were honorable. Don’t misunderstand me. I recognize that what happened was horrible, and Kumaritashvili’s family and teammates are likely still reeling from the impact of it all. If they have to see that clip everywhere they turn on the web, that’s not ideal — especially if any of the commentary employing the clip was in poor taste, which I’m sure some of it was.

Even where all of this is true, U.S. copyright law was not implemented to choke off the flow of facts and news reporting. In fact, § 107 of the Copyright Act specifically limits a copyright owner’s rights in these kinds of situations. The IOC cannot use DMCA takedown notices to silence the speech it does not like. In fact, sending those notices may end up costing the IOC, unless they can successfully make the case that they considered whether use of the clips could be fair use before making their demands. Just ask the artist currently known as Prince. This will be tough argument for the IOC, considering this isn’t the first time they’ve tried to misuse their copyrights.

Unfortunately, groups like the IOC don’t recognize that the appropriate response to inappropriate speech is not to look for the most expedient suppression mechanism — it’s more speech. The marketplace of ideas is perfectly capable of recognizing which commentary is a legitimate dissemination of news about the tragedy and which ones are morbidly childish. Sending out demand letters that essentially state “you have to pay if you want to show our Faces of Death video” is equally deplorable, no matter what the IOC’s intentions actually were.

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The article was originally published on The Tactical IP Blog

Let Women Compete in Olympic Ski Jumping

Until I saw this video, I didn’t know two important facts (and one lesser fact):

1. There is no womens’ ski jumping in the Olympics.
2. The best ski jumper in the world is a woman.
3. The justification for excluding women from Olympic ski jumping is a belief that the woman’s uterus might fall out.

Sign the petition at http://www.wsj2010.com to let the women compete.

Right is right and fair is fair

H/T: Feminist Law Professors

UPDATED: The Yankees Still Suck Ass

Yesterday, I wrote about a fan ejected from Yankee Stadium for refusing to partake in the forced jingoism during the seventh inning stretch.

Upon reflection, while I agree with his complaints, I’m not sure he has a very strong legal case. The update is here. I would be very interested to hear any thoughts on whether the case has any legs at all. I fear that it does not.

Yes, the Yankees Still Suck Ass

Stick this up your ass, Steinbrenner

It is no secret that I hate the Yankees, Steinbrenner, and pretty much anything in pinstripes. But for god’s sake, does George have to make it this easy for me to gain converts?

Another thing I hate, which brings us to the current Yankee-hating issue, is the jingoistic empty-headed false patriotism that infected everything in America, starting on September 12, 2001. Patriotism is about loving the principles your country stands for, not stupid magnets on your car, flags on your house, or any other mass-hysteria imposed conformity.

As many MLB fans may recall, the league asked us to “show our patriotism” by standing for “God Bless America” during the seventh inning stretch. They later slacked off from that — I guess we didn’t need to be that patriotic. Now they ask that teams have this faux patriotism event only on Sundays and holidays. Perhaps on those days, godless atheists and non-christians don’t go to ball games.

The Yankees, never to be outdone when it comes to douchebag-ness, are the only team that still requires that its patrons respect the authoritah of the state during the stretch.

Ok, I could live with that. I think it is stupid, but I can live with it. I’d prefer that they place quotes from the Constitution on the Jumbotron or something, but I can live with it.

However, you don’t actually have a choice at Yankee Stadium, as reported by the New York Times.

By mid-October 2001, the Yankees’ implemented a system using off-duty uniformed police officers, ushers, stadium security personnel and the aisle chains to restrict movement. The Yankees pay the city to use police officers as part of the security detail.

[Lonn A. Trost, the team’s chief operating officer] said the ushers were instructed to allow fans with emergencies to move through the stands. Because one end of each chain is held by a person, instead of secured in place, the system is not considered a fire hazard, a spokeswoman for the New York Fire Department said.

Trost said the Yankees have not heard any complaints about either the continued playing of “God Bless America” or the restrictions on movement.(source)

The plan was apparently a reaction to some fans complaints that other fans were not “showing the proper respect” to God Bless America.

So, to celebrate our freedom and patriotism, the scum sucking Yankees have hired police and surrounded fans with chains in order to show them how free we are.

Now a Yankees fan is striking back. Apparently, on August 26, Bradford Campeau-Laurion went to the bathroom when God Bless America was playing, so police officers enforced Yankee Stadium policy and ejected him from the game.

As he headed toward a tunnel to the concourse, a uniformed NYPD officer blocked his path, “indicating that he could not leave during ‘God Bless America,’ ” his Manhattan federal suit says.

Campeau-Laurion told the cop he didn’t care about the song and tried to get past, but was quickly grabbed by the officer and a colleague stationed nearby.

The cops then allegedly twisted his arms back and frog-marched him to the exit. (source)

Bradford Campeau-Laurion claims that “he was made a victim of political and religious discrimination” and filed a lawsuit against the Yankees yesterday. His complaint is available here.

Campeau-Laurion, a Red Sox fan, says that he brought his suit because he is tired of the “forced patriotism” that seems to have proliferated since Sept. 11, 2001. Hmm, he noticed that, huh?

UPDATE: I’ve given this case some thought, and although I’m on Campeau-Laurion’s side, I fear that his legal case may be less compelling than his story.

Isn’t Yankee Stadium private property? I know it was, in part, paid for with public funds. However, can’t Steinbrenner require everyone to wear a blue bucket on their head throughout the whole game, if he wants? It might be within my civil rights to wear a Borat thong, but if a restaurant wants to say “we’re not serving you unless you put on a jacket,” then don’t they have that right?

What of the fact that this guy was certainly on notice of the policy. Everyone knows that the Yankees have this forced jingoism policy. You buy your ticket to the game subject to the rules of the park. If you are disruptive, you’re out. If you drink too much, you’re out. If you try and bring in a knife or a gun, you’re out. Why can’t a private property owner have this stupid rule too?

I am not aware of any cases directly on point, but there have been a few analogous cases in the Fourth Amendment context. In a fan challenge to routine pat-down searches, the Western District of Washington (Seattle) tossed a fan’s suit on the grounds that there was no state action in the case, thus no Constitutional violation. See Stark v. Seattle Seahawks.

This is in contrast to a short-lived but very enlightened opinion of the Middle District of Florida on the same issue. However, the 11th Circuit overturned that on the grounds that the plaintiff consented to the searches. See The St. Pete Times editorial on that decision.

It is true that to have a First (or a Fourth) Amendment violation, you need a state actor. However, a private entity can be a state actor in certain circumstances. For example, if the private entity exercises powers “traditionally exclusively reserved to the State.” Jackson v. Metro. Edison Co., 419 U.S. 345, 352 (1974). The context in which courts have recognized traditional state functions include administering elections, Terry v. Adams, 345 U.S. 461 (1953); and running a company-owned town, Marsh v. Alabama, 326 U.S. 501 (1946).

In the Seahawks case, the Western District of Washington held:

Because neither operating a stadium nor providing security is a function traditionally and exclusively reserved to the state, the court concludes that the pat-down searches conducted by private actors at Qwest Field do not constitute state action.

Similarly, I question whether the Yankees’ policy constitutes “state action.” Yes, the stadium is publicly funded. Yes, the goons who threw Campeau-Laurion out of the stadium were uniformed NYPD officers. However, they were being paid privately by the Yankees and not serving as public officers at the time.

Trust me, I WANT the guy to win. If there are two things I hate, they are faux patriotism rituals and the New York Yankees. I just fear that this guy has some serious issues in this case that he’s going to have a lot of trouble getting past.

Yankees Suck!

Report: Sox-Yanks rivalry led to murder. Police say Nashua woman ran over man in pub’s parking lot (story here)

HT: Volokh

When is it okay to beat your wife?

When it is in furtherance of baptism. HT to Feministe.

Apparently, Jimmy Harrison of the Pittsburgh Steelers gave his kid’s mother a taste of the back of his hand because she didn’t want the boy baptized.

What Jimmy Harrison was doing and how the incident occurred, what he was trying to do was really well worth it,” Rooney said of Harrison’s initial intent with his son. “He was doing something that was good, wanted to take his son to get baptized where he lived and things like that. She said she didn’t want to do it.”

I actually held off on posting this until today because I didn’t want anyone to think that it was an April Fool’s Day joke. Un-freakin-believable.

MLB Takes on Cape Cod League in Trademark Spat

The Cape Cod Baseball league is a 10 team amateur summer league that has produced approximately 200 players who went on to play in the major leagues.

Six of the ten Cape Cod League teams share names with MLB franchises. The Chatham A’s, Yarmouth-Dennis Red Sox, Harwich Mariners, Bourne Braves, Orleans Cardinals, and the Hyannis Mets are now the center of a trademark dispute.

According to Cape League sources, the six teams in the 10-team Cape League that share nicknames with major league franchises are facing a choice: Purchase all future uniforms and souvenir merchandise from more expensive MLB-licensed vendors or lose the annual grant.

MLB is also requesting an 11 percent royalty on sales next summer of existing inventory from the six affected Cape League teams. Non-clothing items such as coffee mugs and teddy bears that are not available through MLB vendors could no longer be sold. (source)

As lame as that is, from the Cape Cod Times report, it doesn’t seem to be quite as bad as some commentators are making it out to be. See, e.g., Techdirt. As far as I can see, MLB is not threatening a lawsuit, but merely threatening to revoke its $100,000 grant that it provides to the Cape Cod League’s $1.5 million annual budget.

I do sympathize with the Cape Cod League. However, it seems to break down to this: MLB gives the Cape Cod League $100,000 a year. In exchange, MLB wants the Cape Cod League to buy stuff from MLB’s friends. The Cape Cod League doesn’t need to accept the grant. In fact, I interviewed a high ranking Cape Cod League official who gave this comment:

Bro, you don’t even fahckin know guy, MLB was like fahckin cool about us usin’ the team names fah yeahs. Now, all outta nowheah, these fahckin pricks ah sayin’ we gotta buy ah shirts and hats from them?

So I says to Sully I says “Dood, should I fahck him up?” and Sully’s like “I dunno guy, you’re pretty hammahd. Then I called my Ma and tole her to leave the door unlocked cuz I’ll be home wicked late tonight.

Fahkin faghet it. I ain’t buyin’ shit from those bastids. Take ya hundred lahge and throw it in the habah.

Ok, maybe that is 100% fabricated, but that’s what I would say.

Of course, if MLB actually threatens a lawsuit against the Cape Cod League, my analysis might be different.

Tibet and the Beijing Olympics

Jon Katz gives us some thought provoking commentary on the Beijing Olympics, human rights in China, and surprisingly (but persuasively) argues against government boycotts of the Chinese festivities: Tibet is but one reason to consider not watching the Chinese Olympics.

Jeb Corliss’ decision reversed (in part)

My friend over at Simple Justice reports on a little legal setback for Jeb Corliss. See When He Says “Jump”, You Ask “How High?”

I initially wrote about Corliss’ case in my article, BASE Jumping and the Law. In that post, I wrote about how Corliss attempted a jump from the Empire State Building, but was apprehended just as he got over the suicide fence. New York then charged him with reckless endangerment on the theory that had he made the jump, he very well could have hurt people below. This theory was successfully argued by the prosecution in United States v. Carroll, 813 F. Supp. 698 (E.D. Mo. 1993).

Corliss convinced the court that he planned the jump very carefully — so carefully, that nobody could reasonably call his conduct “reckless.” The judge bought it and dismissed the case.

The Appellate Division upheld the dismissal of the first degree reckless endangerment, but that was a pyrrhic victory for Mr. Corliss. The Appellate Division held:

Because the evidence before the grand jury was sufficient to establish the elements of reckless endangerment in the second degree, the motion court should have ordered the reduction of the charge to that offense pursuant to CPL 210.20(1-a), rather than dismissing the indictment entirely. We observe that under CPL 210.20(6), upon entry of such an order the People have several options as to further proceedings. (source)

So, back to court Mr. Corliss goes.

Other related posts:

1. Jeb Corliss Sues Empire State Building
2. Jeb Corliss Lawsuit Update

Things to do in Denver when you’re DUMB

Andrew Feinstein is a frustrated Denver Nuggets fan. Sick of what he perceived as mismanagement of the basketball team by Nuggets coach George Karl, Feinstein launched www.firegeorgekarl.com.

George Karl seemed to take it all in stride. When asked about the blog by the Rocky Mountain News, he said:

“The longer you’re with a team, the more people like you and the more people dislike you,” Karl said. “I don’t think it’s valuable to pay attention to that, to de-energize me and waste my energy right now.” (source)

This sounds like a public figure with class, no?

A funny thing happened though…

Around the same time, Feinstein got this email from George Karl’s attorney, Bret Adams.

Is your life really this boring and meaningless that you would spend the hours necessary to create such a website?

As Coach Karl’s counsel I am putting you on notice that I will sue you into bankruptcy should you cross the boundaries of permissible speech. (source)

No, really. Click the thumbnail image on the right:

Deadspin had a funny reaction to this:

Oooh! Big scary lawyer man!

From all accounts, this appears to be an actual email from an actual attorney, which is kind of depressing, actually.

This is the best possible way to make a story go away. Good work, Bret Adams! If Karl is ultimately let go by the Nuggets, you’ve just assured that Fire George Karl will be mentioned in the obituary. Now that’s lawyerin’! (source)

Now honestly, I thought this was a hoax. I might expect this kind of thing from a Liberty University or Regent Law grad, or perhaps from someone who was out of law school for less than a year. But this guy?

So I did some more investigation. It looks like the Wall Street Journal Law Blog confirmed that the email did, indeed, come from Karl’s attorney. Source.

In reply to an inquiry sent by the WSJLB, Adams wrote:

Thanks for your email. While George Karl may be a public figure within the sports community, there are limits to what is fair comment under New York Times v. Sullivan, 376 U.S. 254 (1964). Many cases quote from the Restatement (Second) of Torts § 59 that a statement is defamatory if it “tends to harm the reputation of another as to lower him in the estimation of the community or deter third persons from associating or dealing with him.” Sure, people are free to criticize Mr. Karl’s record, his coaching style, or both. But free speech has its limits. My role as Mr. Karl’s counsel is to see to it that the line between free speech and defamation is not crossed. I stand by my statement that people should have better and more important things to do than to create mean-spirited blogs and that, while I respect (and exercise) free speech rights, there are boundaries and consequences. (Source)

How is this for a consequence? Mr. Adams, you just revealed yourself as an attorney who has been practicing law since 1984, yet still has not learned the “actual malice” standard and who hasn’t heard of the Streisand Effect.

Nice job. Now, because of this abjectly foolish email, a blog that was seen by a few thousand people is now world famous and you are now exposed as having absolutely no clue how to protect your client’s reputation. Your client was doing just fine before you got involved. (Place thumb and forefinger in “L” configuration and place on forehead, please).

One commenter on the WSJ Blog should be hired by Mr. Adams’ firm to give him a little training:

Ethical issues aside, a good attorney would not have created the huge risk of negative publicity attendant to making a written(!) threat of this nature. This ridiculous email, which was obviously going to end up posted to the blog, is liable to become a minor media sensation during a particularly slow time during the sports year. (Sportscenter, anyone?) So instead of a minor nuisance of a website created by someone who is(it cannot be denied) an avid fan, the coach now has a potential PR disaster on his hands. Which is more likely to harm the coach’s career?

An effective attorney would have handled the issue politely and quietly. Better yet, he would have advised his client that such websites are common and should just be ignored…this lawyer has seriously compromised his client’s interests. (source)

Precisely.

18-1 and nobody can take that from us…. 19-0 is a sad dream

Ok, I can finally talk about it… perhaps that will help me get over it.

At the Superbowl, I had a great time hanging out with some Giants fans before the game. It was a pretty good crowd, and everyone got along.

The only people with whom I exchanged an unkind word were two Pats fans who walked in wearing 19-0 shirts.

You do not anger the gods like that… (nor do you disrespect a team that frankly looks a lot like the 2001 Patriots).

Back before the gods stopped punishing the Sox, I used to say “we’re the 1918 World Champs, and nobody can ever take that from us.”

I guess that I can now say that the Patriots went 18-1, and nobody can ever take that away from us.

I’d like to send a big ass-hat award to Bob Kraft for angering the football gods by filing a trademark application for 19-0 , the perfect season.. (Thank you for the correction, Bob). That was as stupid as the Steelers reserving their hotel rooms in New Orleans before the 2001 AFC Championship game.

If anyone has one of those flashy things that they used on Men In Black, I’d like to borrow it to erase all memories of Feb. 3, 2008.

And for cryin’ out loud, will people STOP saying that the Pats tried to patent or copyright 19-0? It was a trademark registration. There is a big difference.

Ugh… congratulations to the Giants… they earned it. Nobody believed in them, nobody believed in their QB, they fought the whole way on the road, and the Patriots didn’t come out and play them like they respected them. The Patriots deserved that loss. And if this is the football equivalent of the 1986 World Series, Matt Light is the new Bill Buckner. That stupid bum missed way too many blocks all post-season and played like a drunk rookie in the Superbowl. Well, not just then… pretty much for as long as I have watched him act like a turnstile instead of a left tackle.

“The false start saved our life. Every now and then you win one.” – Matt Light after the Baltimore Ravens game (source)

Yeah, every now and then. Of course, every other time you screw us. If Belichick doesn’t cut Light in the off season, I’m not wearing my Pats jersey on opening day.

Okay, there, I talked about it. Can everyone shut up now?

Jeb Corliss Lawsuit Update

A few days ago, I posted about Jeb Corliss, the man who attempted to BASE jump from the Empire State Building, and his lawsuit against the building’s management.

I have found a video of the incident and it has tilted my opinion just a bit.