Copyright in tattoos in videogames: will a bankruptcy appellate panel tell us all (or at least something)?
The real Carlos Condit in action ... |
It appears that concerns pertaining to copyright in tattoos do not interest solely the world of games, but also that of videogames.
A few months ago The Hollywood Reporter told the story of Arizona-based tattoo artist Chris Escobedo, who sued videogame publisher THQ over the UFC Undisputed games. As summarised by The Legal Satyricon, the plaintiff had tattooed a lion on US mixed martial fighter Carlos Condit’s ribcage, and claimed that he owned a valid copyright to this image. Therefore, unauthorised use by THQ of his work in UFC Undisputed 3 was tantamount to copyright infringement.
... his virtual version ... |
Escobedo claimed that this amounted to $4.16m, ie 2% cut of all post-bankruptcy sales of UFC Undisputed 3. The judge disagreed and valued the claim at a slightly lower value: $22,500, this being the same amount Condit himself had been paid for the use of his image in the game.
Clearly Escobedo was not satisfied with this outcome. Thus a few days ago he appealed the order before a bankruptcy appeal panel. Escobedo's attorney asked to determine what royalty a hypothetical negotiation between his client and THQ would have produced and made the argument that Escobedo would have negotiated a per game royalty rather than a one-time fee.
... and his Kat version (you may have fun trying to guess which he is) |
- the likelihood that a tattoo on another person's body is not copyrightable,
- the likelihood that Condit had an implied license to license to THQ his own digital image (including an image of his lion tattoo), without restriction by a tattoo artist [Escobedo and Condit never signed a written agreement]; and
- the likelihood that, if the lion tattoo is copyrightable, Condit would have to at least be considered a joint author of the tattoo with an equal right to license it to others.
Who sports it best? |
Who knows: perhaps the decision of a bankruptcy appellate panel will shed some light on whether copyright may subsist in tattoos. It is apparent that providing an answer to this question will have relevant implications, both legally and economically, especially in societies (like the US) where 4 out of 10 so called millennials (teens and twenty-something) have at least one tattoo. There is no need to point out that current and future sportsmen and sportswomen, cool singers and actors, models and socialites who appeal to advertising agencies, commercial sponsors and similar undertakings are likely to be among them.