

On Tyson's Face, It's Art. On Film, a Legal Issue - pwg
http://www.nytimes.com/2011/05/21/business/media/21tattoo.html

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nextparadigms
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.

~~~
tzs
> 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.

~~~
chopsueyar
That does not sound like an easy process to me.

~~~
tzs
One the receiving side it is trivial once you download the video:

    
    
       ffmpeg -i source_video.avi -vn -ar 44100 -ac 2 -ab 192 -f mp3 sound.mp3
    

Or, for those who don't want to deal with the command line, a Google for "how
to download music from youtube" will turn up numerous friendly programs to
accomplish the task. Amusingly, there are a ton of YouTube videos explaining
the process. :-)

On the producing side, it would also be easy to automate. Ffmpeg can add audio
to a video, and it can trim a video. You could easily have a long video of
your cat, say 30 minutes, and write a shell script to take a directory of MP3
files, and for each find the length, pick a random section from your long cat
video of the appropriate length, extract a section of that length, and add the
audio. The script could then upload the video to YouTube, putting the artist
and song name in the description, so that on the receiving side naming and
basic tagging of the MP3 could be automated.

~~~
chopsueyar
Which version of ffmpeg?

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

~~~
tzs
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.

~~~
nostromo
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.

~~~
tzs
He owns that copy. He just can't authorize someone making a copy of it on,
say, your face.

Arguably, due to the first sale doctrine, he could transfer his copy to your
face, say via a skin transplant.

Where it could get interesting is if someone photographs him (and thus the
tattoo). I'm not well versed in how the law works when it comes to
photographing copyrighted works, but I do know that there are a lot of special
cases, and there is a big distinction between works displayed in public and
works that are not on public display, and that a lot depends on what the
photographer is doing with the photograph.

I wonder if someone who has a problem with intrusive paparazzi intruding on
their non-public life could get a copyrighted tattoo, buy the copyright from
the tattoo artist, and then sue any photographer who tries to sell a photo
taken in a private setting that includes the tattoo?

~~~
nostromo
Right, but this is my point. The Hangover also 'republished' the tattoo
artwork -- only they did so by filming Tyson instead of that other guy. So,
IANL, but it would seem if you're going to sue over The Hangover 2, you would
also have to sue for the original movie, and every magazine that has published
Tyson's face since he got the tattoo.

The absurdities this lawsuit opens are never ending... :)

------
kmfrk
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?

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

~~~
p0ckets
That's fine if the copyright owner wants financial compensation, but what if
he/she demands that the infringing material be removed?

~~~
chopsueyar
The aggrieved party would bring suit against the infringing artist, but the
judge could not compel an act (injunctive relief) against a party that was not
part of the lawsuit.

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ccc3
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
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...](http://en.wikipedia.org/wiki/Berne_Convention_for_the_Protection_of_Literary_and_Artistic_Works)

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.

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aychedee
[http://www.directorys.uniquearticles.info/Article/Traditiona...](http://www.directorys.uniquearticles.info/Article/Traditional-
Maori-Tattoo-Designs/121023) All parties are behaving immorally anyway.

~~~
robomc
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...

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

~~~
corin_
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
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.

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brianstorms
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.

~~~
hugh3
A better picture:

[http://s-ak.buzzfed.com/static/imagebuzz/terminal01/2011/4/2...](http://s-ak.buzzfed.com/static/imagebuzz/terminal01/2011/4/29/16/mike-
tysons-tattoo-artist-sues-over-the-hangover--9026-1304107834-24.jpg)

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.

~~~
chopsueyar
It is a parody.

~~~
hugh3
I thought about the parody defence, that might also work.

