On Tyson's Face, It's Art. On Film, a Legal Issue

http://www.nytimes.com/2011/05/21/business/media/21tattoo.html

by pwg • 15 years ago

56 59 15 years ago

itg• 15 years ago

It says I'm logged in as david.lee@gmail.com? Anyone else get this?

corin_• 15 years ago

Yep, "jsessionid" is set in the URL. I don't know if that is David trying to help people get around the paywall, or an accidental inclusion.

timerickson• 15 years ago

I just attempted to revisit the page, and hit the paywall login. I'm not sure if NYTimes clued in to the number of IPs being associated with said account or if they give users a one time preview reading of the article.

kylec• 15 years ago

Odd, on mine it says I'm logged in as dapurpura@gmail.com

nextparadigms• 15 years ago

The music and movie studios have been so quick to push censorship laws lately and they don't even realize those same laws might turn back against them later.

"That's the real question: the copyright act balances the copyright owners' rights and not stifling the creativity of the owners - it would stifle creativity to not be able to make a parody," Mr. Harkins said."

Such a shame you're not allowed to use someone else' songs on Youtube anymore for your own personalized videos. The same thing should apply here, too.

jrwoodruff• 15 years ago

IANL, but fair use would apply on your You Tube video. The problem is you'd have to have the bankroll to go to court against the music label. And you'd also want to be damn sure that your use of the song falls under parody or one of the other definitions of fair use.

chopsueyar16• 15 years ago

Also, who says you have to host it on You Tube?

Those are the policies of You Tube/Google, not necessarily US copyright law.

tzs9• 15 years ago

Parody can be fair use. It isn't automatically fair use. There is a lot of misunderstanding of this on the net, largely due to the press doing their usual crappy job of reporting Supreme Court decisions when they covered the Campbell v. Acuff-Rose Music case (the "Pretty Woman" case).

chopsueyar16• 15 years ago

The double-edged sword has been helpful in educating judges.

The tactics of the MAFIAAs against P2P 'infringers' is also being used by attorneys of adult pornography content producers.

As the type of content needing protection against infringers changes to pr0n, we are seeing more support on the part of the judicial system in balancing the rights of the accused against the MAFIAAs and pr0n IP defenders.

Now that you mention it, fair-use as parody will probably be a valid defense.

tzs9• 15 years ago

Down voted for MAFIAA. It's as stupid as M$ in adult discussions.

tzs9• 15 years ago

> Such a shame you're not allowed to use someone else' songs on Youtube anymore for your own personalized videos.

If you could freely use anyone's music on your YouTube videos, wouldn't the net effect be that all music would be available for free to anyone? People would just get new songs as they are released, slap then on videos of their cats, and make them available on YouTube, where anyone could easily grab them, strip off the video, and have the song.

chopsueyar16• 15 years ago

That does not sound like an easy process to me.

tzs9• 15 years ago

Could you down-voters explain yourselves, please?

greiskul• 15 years ago

But shouldn't a tattoo be considered a "work for hire", with Tyson owning the copyright on his own tattoo?

joshu• 15 years ago

That wa my assumption.

sunchild2• 15 years ago

Tyson definitely owns an instance of the tattoo. He doesn't own the design, unless the artist signed a contract transferring ownership of the design to Tyson.

Devilboy• 15 years ago

That's not what the law says. If Tyson paid the artist to design him a tattoo then it belongs to Tyson.

biot• 15 years ago

From the article:

"The complaint includes a photograph of the tattoo being inked and a statement from Mr. Tyson agreeing that “all artwork, sketches and drawings related to my tattoo and any photographs of my tattoo are property” of Mr. Whitmill’s business."

Agreements aside, this is also an issue that comes up when hiring a programmer. If you pay someone to write code, don't you own the copyright on the code? Similarly, if you pay someone to photograph your wedding, don't you own the copyright on those photographs? In general, have a solid written contract clearly spelling out ownership issues and have it reviewed by a lawyer familiar with copyright issues before you engage someone in creative work.

sk5t• 15 years ago

FWIW, you ordinarily would not own copyright to photos a professional takes of your wedding, and most professionals would apply a large fee otherwise.

tzs9• 15 years ago

No. In the US to be a work for hire it must fall into one of two cases.

1. a work prepared by an employee within the scope of his employment. The tattoo artist would not be an employee[1] of Tyson, so this case does not apply.

2. A work specially ordered or commissioned (check!) for us as a contribution to a collective work (nope!), as a part of a motion picture (nope!) or other audiovisual work (nope!)[2], as a supplementary work (nope!)[3], as a compilation (nope!), as an instructional text (nope!), as a test (nope!), or as an atlas (nope!), if the parties expressly agree in a written instrument signed them that the work shall be considered a work made for hire.

Case 2 does not apply because first a tattoo doesn't seem to fall into any of the categories that can be a work for hire. Even if it did, there would have to be an EXPRESS agreement that it is a work for hire, and that has to be executed as a SIGNED and WRITTEN instrument.

[1] The determination of whether the hired party is an employee is determined by the common law of agency. Factors involved in this are who controls the manner and means by which the work is accomplished, who supplies equipment and tools, where the work is done, the duration of the relationship, whether the hiring party can assign addition work to the hired party, who hires assistants for the hired party, and things like that. Unless the relation between Tyson on the artist was very atypical of the relationship between tattoo artist and customer, the artist was not an employee according to the common law of agency.

[2] An "audiovisual work" is a work that consists of a series of related images which are intended to be shown by the use of machines or devices, such as projectors, viewers, or electronic equipment, together with accompanying sounds (if any). Since a tattoo is a single image, not a series of related images, it is not an audiovisual work.

[3] A supplementary work is a work that is created and relates to an existing work. Examples would be forwards to books, illustrations for a book, and the like.

chopsueyar16• 15 years ago

Also from the wikipedia article (http://en.wikipedia.org/wiki/Work_for_hire#Law_of_the_United...)...

Where start-up technology companies are concerned, some courts have considered that the traditional factors for finding that an author is an "employee" can be less important than in more-established companies, for example if the employee works remotely and is not directly supervised, or if the employee is paid entirely in equity without benefits or tax withholding

Your #[3] could be argued that as a celebrity persona, the public image of "Mike Tyson" is a created work, and the addition of the tattoo is supplementary to his creative work - his celebrity persona. But, as you stated, it would still require a signed work for hire document.

nostromo2• 15 years ago

Wait -- doesn't this mean that Tyson himself doesn't own the work!? The implications of not owning something on your own face are mind-boggling.

warfangle• 15 years ago

Couldn't you consider the collection of tattoos upon ones person a 'collective work,' if more than one tattoo artist is represented?

SoftwareMaven• 15 years ago

If Tyson has multiple tattoos, couldn't this be seen as a contribution to a collective work?

brianstorms• 15 years ago

This is nuts. It's not even a copy. Look closely at the movie tattoo then at Tyson's. Similar, not the same. Not a copy.

The whole thing smells of publicity stunt by Warner Bros, and a money grab by the tattooist.

hugh33• 15 years ago

A better picture:

http://s-ak.buzzfed.com/static/imagebuzz/terminal01/2011/4/2...

They are actually pretty darn similar, though Helms' tattoo is a bit different -- a little squarer.

My gut feeling is that the lawsuit doesn't have merit, though I have difficulty putting together a legal justification of why that is. My general feeling is that the actual tattoo design is too generic a combination of random Maori design elements to be copyrightable.

But no, I don't think this is a publicity stunt by Warner Bros. But yes, clearly it is a money grab by the tattooist.

chopsueyar16• 15 years ago

It is a parody.

kmfrk• 15 years ago

It's an interesting, principle case.

On another note, what would happen, if a tattoo artist used another artist's work on a customer? How will said customer have to comply, if the work tattooed is deemed to be an infringement on the original artist's copyright?

chopsueyar16• 15 years ago

The infringer is the artist duplicating the other artist's work. The IP crime is not being committed by the customer.

p0ckets• 15 years ago

That's fine if the copyright owner wants financial compensation, but what if he/she demands that the infringing material be removed?

ccc3• 15 years ago

I have a friend who owns a company that makes manufacturing equipment. I've often heard him say, usually in frustration, that if you make something in America you will eventually get sued. Sadly, it looks like his observation now extends to movies.

gallerytungsten• 15 years ago

While your contention about manufacturers being sued is generally accurate, that is a matter of product liability, which is a considerably different issue than the copyright issue at hand.

In the case at hand, the issue is artistic copyright and the moral rights of artists. One of the applicable governing laws in this area is the Berne copyright convention, which the US ratified in 1989. See http://en.wikipedia.org/wiki/Berne_Convention_for_the_Protec...

Additionally, a number of articles have mentioned that the tattoo artist had a contract with Tyson that covered the type of controversy that's the subject of the litigation.

Bottom line: I think he has a case.

aychedee• 15 years ago

http://www.directorys.uniquearticles.info/Article/Traditiona... All parties are behaving immorally anyway.

robomc• 15 years ago

It really doesn't look anything like a moko though...

ie: http://static2.stuff.co.nz/1233108507/512/167512.jpg

I'd seen that tattoo a few times and hadn't realised it was supposed to be māori in any way...

On Tyson's Face, It's Art. On Film, a Legal Issue

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