5 ms·

You are suggesting that since it’s legal for me to share a fanphoto of myself and Mike Tyson, then by extension I should be allowed to use his likeness in a 3D

You are suggesting that since it’s legal for me to share a fanphoto of myself and Mike Tyson, then by extension I should be allowed to use his likeness in a 3D model in a computer game. If rights did really get passed on that loosely, then celebrities would have no way of monetizing their own brand.

Ensorceled 8y ago
That’s not at all the same.
xoa 8y ago
>You are suggesting that since it’s legal for me to share a fanphoto of myself and Mike Tyson, then by extension I should be allowed to use his likeness in a 3D model in a computer game. No, that's not what they're suggesting at all, and you're conflating two separate things here. Using someone's likeness in a commercial work is already legally protected (in the most economically important jurisdictions anyway) and is different from mere publishing of a legal photo for which the copyright is owned (for which no permission is needed by default). The argument is that if you received Mike Tyson's agreement (or that of his authorized legal agent of course) to use his likeness in a game, then a 3rd party should not have veto over Mike Tyson's ability to allow use simply because they were paid to make a tattoo for him. It'd be his likeness, and he should be the sole decider of that absent compelling public interest otherwise (such as political commentary or criticism). If somebody else does some work with our bodies, their interest in that should be exhausted instantly by the payment they receive for that service (or by nothing if they volunteered). It's our bodies we're talking about here, one of the most personal things about a human. At the very least this should be the default, though personally I'd lean towards this being something that is immutable as well and cannot be contractually signed away either. I don't think the can of worms it opens is worth any possible public gain from body royalties.
- tokyodude 8y ago
  It doesn't seem that simple. If I get a tattoo of Star Wars or R2D2 or Iron Man there's arguably something not 100% "It's now mine to do whatever I want with". I'll get a tattoo of Darth Vader on my back, take a picture, print it on a cereal box and sell Darth Vader cereal. If you agree (maybe you don't) that I shouldn't be able to sell cereal with a picture of my Darth Vader tattoo on the box then what's the difference? That Darth Vader belongs to someone other than the tattoo artist? If that's the argument then why does the tattoo artist have to give up their design but Disney does not when it's drawn on someone?
  - xoa 8y ago
    >If I get a tattoo of Star Wars or R2D2 or Iron Man Did you have a license to get those as tattoos in the first place? My understanding would be that the original sin there would be getting that tattoo of an IP at all without permission, even if such things commonly fly under the radar (unless there is some legal right to get any tattoo regardless of IP). The remedy there would presumably be to get sued and have to pay a judgement as a result of a lost civil action [1]. Future separate damages could result in future suits. >"It's now mine to do whatever I want with" Be specific about what you're referring to with "it's" there. Are you arguing that an instance trademark infringement would mean the infringer no longer owned their whole body any longer? Is that actually justified by the damage caused by an unauthorized tattoo? Of course it wouldn't allow any other usage beyond that incidental to using their body and likeness overall. But I'd be really, really wary of allowing IP infringement to enter into this area, and try to game theory out the costs even for restricted implementations. Imagine for example you argued "well, we'll only restrict it for commercial usage!" But now consider the case of a person with an infringing tattoo who commits some act of public notoriety, say a politician who is significantly corrupt. News organizations want to cover this, and they're clearly commercial, but that would mean if they show the politician in question they'd be showing the infringing tattoo as well. Is this allowed? Does it require a court case to determine as an affirmative defense or is it innate, and what are the chilling effects if the former? What's the line? I'm not saying you can't come up with answers for all this, but it also gets awfully complicated awfully quickly vs just defining bodies as a special area of law. Exactly what damages is that Star Wars tattoo really causing? >If you agree (maybe you don't) that I shouldn't be able to sell cereal with a picture of my Darth Vader tattoo on the box then what's the difference? Are you seriously confused about the difference between a cereal box and a human's control of their own body and the public's interest in the representation of humans? It is both perfectly legitimate and standard practice to weigh different things differently and consider how remedies impact conflicting parties. IP in general only exists for the public interest after all. >That Darth Vader belongs to someone other than the tattoo artist? Well yeah, that matters in that the tattoo artist could themselves be committing an act of infringement against a third party. Whereas an original design for hire does not involve any other parties besides those part of the transaction. That's not irrelevant. >If that's the argument then why does the tattoo artist have to give up their design but Disney does not when it's drawn on someone? Why do you assume the tattoo artist should own their design on a person? The natural default is no IP. How is the public interest advanced by giving tattoo artists a perpetual right over any human they work on vs declaring that all commercial compensation should be part of the actual transaction? We exhaust rights (such as with first sale doctrine) elsewhere all the time. ---- 1: Maybe removal would be offered as a settlement, but I'm not sure a US court would ever require that as a judgement since performative actions are not usual in civil cases, plus it'd constitute a painful medical procedure which is its own can of worms.

Ensorceled 8y ago

That’s not at all the same.

xoa 8y ago

>You are suggesting that since it’s legal for me to share a fanphoto of myself and Mike Tyson, then by extension I should be allowed to use his likeness in a 3D model in a computer game. No, that's not what they're suggesting at all, and you're conflating two separate things here. Using someone's likeness in a commercial work is already legally protected (in the most economically important jurisdictions anyway) and is different from mere publishing of a legal photo for which the copyright is owned (for which no permission is needed by default). The argument is that if you received Mike Tyson's agreement (or that of his authorized legal agent of course) to use his likeness in a game, then a 3rd party should not have veto over Mike Tyson's ability to allow use simply because they were paid to make a tattoo for him. It'd be his likeness, and he should be the sole decider of that absent compelling public interest otherwise (such as political commentary or criticism). If somebody else does some work with our bodies, their interest in that should be exhausted instantly by the payment they receive for that service (or by nothing if they volunteered). It's our bodies we're talking about here, one of the most personal things about a human. At the very least this should be the default, though personally I'd lean towards this being something that is immutable as well and cannot be contractually signed away either. I don't think the can of worms it opens is worth any possible public gain from body royalties.

tokyodude 8y ago
It doesn't seem that simple. If I get a tattoo of Star Wars or R2D2 or Iron Man there's arguably something not 100% "It's now mine to do whatever I want with". I'll get a tattoo of Darth Vader on my back, take a picture, print it on a cereal box and sell Darth Vader cereal. If you agree (maybe you don't) that I shouldn't be able to sell cereal with a picture of my Darth Vader tattoo on the box then what's the difference? That Darth Vader belongs to someone other than the tattoo artist? If that's the argument then why does the tattoo artist have to give up their design but Disney does not when it's drawn on someone?
- xoa 8y ago
  >If I get a tattoo of Star Wars or R2D2 or Iron Man Did you have a license to get those as tattoos in the first place? My understanding would be that the original sin there would be getting that tattoo of an IP at all without permission, even if such things commonly fly under the radar (unless there is some legal right to get any tattoo regardless of IP). The remedy there would presumably be to get sued and have to pay a judgement as a result of a lost civil action [1]. Future separate damages could result in future suits. >"It's now mine to do whatever I want with" Be specific about what you're referring to with "it's" there. Are you arguing that an instance trademark infringement would mean the infringer no longer owned their whole body any longer? Is that actually justified by the damage caused by an unauthorized tattoo? Of course it wouldn't allow any other usage beyond that incidental to using their body and likeness overall. But I'd be really, really wary of allowing IP infringement to enter into this area, and try to game theory out the costs even for restricted implementations. Imagine for example you argued "well, we'll only restrict it for commercial usage!" But now consider the case of a person with an infringing tattoo who commits some act of public notoriety, say a politician who is significantly corrupt. News organizations want to cover this, and they're clearly commercial, but that would mean if they show the politician in question they'd be showing the infringing tattoo as well. Is this allowed? Does it require a court case to determine as an affirmative defense or is it innate, and what are the chilling effects if the former? What's the line? I'm not saying you can't come up with answers for all this, but it also gets awfully complicated awfully quickly vs just defining bodies as a special area of law. Exactly what damages is that Star Wars tattoo really causing? >If you agree (maybe you don't) that I shouldn't be able to sell cereal with a picture of my Darth Vader tattoo on the box then what's the difference? Are you seriously confused about the difference between a cereal box and a human's control of their own body and the public's interest in the representation of humans? It is both perfectly legitimate and standard practice to weigh different things differently and consider how remedies impact conflicting parties. IP in general only exists for the public interest after all. >That Darth Vader belongs to someone other than the tattoo artist? Well yeah, that matters in that the tattoo artist could themselves be committing an act of infringement against a third party. Whereas an original design for hire does not involve any other parties besides those part of the transaction. That's not irrelevant. >If that's the argument then why does the tattoo artist have to give up their design but Disney does not when it's drawn on someone? Why do you assume the tattoo artist should own their design on a person? The natural default is no IP. How is the public interest advanced by giving tattoo artists a perpetual right over any human they work on vs declaring that all commercial compensation should be part of the actual transaction? We exhaust rights (such as with first sale doctrine) elsewhere all the time. ---- 1: Maybe removal would be offered as a settlement, but I'm not sure a US court would ever require that as a judgement since performative actions are not usual in civil cases, plus it'd constitute a painful medical procedure which is its own can of worms.