3 ms·

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".

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.
- tokyodude 8y ago
  Wow, you completely and utterly missed the entire point of everything I wrote and just made up strawmen Disney creates design (action 1). Someone puts it on human skin (action 2). Someone uses that image of the tattoo on a person as promotion (action 3). Most people would agree even if you tattoo Darth Vader on your body you can't use Darth Vader on your body for promotion it belongs to Disney Change action 1 to the same person as action 2. Why does the tattoo artists not get the same rights as Disney? Nothing changed except replacing Disney with Tattoo artist. In fact let's add a 3rd case. Tattoo artist hires friend to design tatoo. Why is this friend not afforded the same rights as Disney? AFAICT the law is on the side of the person that created the art (or owns the copyright in the art if the person that created it transffered their rights). If you tattoo Darth Vader on yourself the person who owns the rights to Darth Vader doesn't suddenly lose their rights. Instead, you irresponsibly used someone else's IP. Nothing changes if that IP holder is suddenly not Disney. This is true for normal contracts, at least in the USA. If you contract an artist to draw something for you, unless you specifically get them to sign away all their rights in the art via the contract they retain those rights. https://www.google.com/search?q=artist+retain+rights+unless+work+for+hire& https://www.google.com/search?q=artist+retain+rights+unless+... You could argue the person paying for the tattoo as a reasonable expectation that the tattoo now belongs to them, not the tattoo artist. But that doesn't seem to fit with normal case law. If you pay your buddy $100 to make a logo for your new youtube video you may think you're done. The logo is yours. But AFAICT unless you specifically signed a contract your buddy would actually still own the rights to that logo regardless of the fact that you paid him. See all the links that google search brings up. Even though most poeple would say common sense says the artist has no rights, you paid them, case law says otherwise. Without a specific contract saying otherwise you don't own it even if you paid.

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.

tokyodude 8y ago
Wow, you completely and utterly missed the entire point of everything I wrote and just made up strawmen Disney creates design (action 1). Someone puts it on human skin (action 2). Someone uses that image of the tattoo on a person as promotion (action 3). Most people would agree even if you tattoo Darth Vader on your body you can't use Darth Vader on your body for promotion it belongs to Disney Change action 1 to the same person as action 2. Why does the tattoo artists not get the same rights as Disney? Nothing changed except replacing Disney with Tattoo artist. In fact let's add a 3rd case. Tattoo artist hires friend to design tatoo. Why is this friend not afforded the same rights as Disney? AFAICT the law is on the side of the person that created the art (or owns the copyright in the art if the person that created it transffered their rights). If you tattoo Darth Vader on yourself the person who owns the rights to Darth Vader doesn't suddenly lose their rights. Instead, you irresponsibly used someone else's IP. Nothing changes if that IP holder is suddenly not Disney. This is true for normal contracts, at least in the USA. If you contract an artist to draw something for you, unless you specifically get them to sign away all their rights in the art via the contract they retain those rights. https://www.google.com/search?q=artist+retain+rights+unless+work+for+hire& https://www.google.com/search?q=artist+retain+rights+unless+... You could argue the person paying for the tattoo as a reasonable expectation that the tattoo now belongs to them, not the tattoo artist. But that doesn't seem to fit with normal case law. If you pay your buddy $100 to make a logo for your new youtube video you may think you're done. The logo is yours. But AFAICT unless you specifically signed a contract your buddy would actually still own the rights to that logo regardless of the fact that you paid him. See all the links that google search brings up. Even though most poeple would say common sense says the artist has no rights, you paid them, case law says otherwise. Without a specific contract saying otherwise you don't own it even if you paid.