
Athletes Don’t Own Their Tattoos – a Problem for Video Game Developers - jatsign
https://www.nytimes.com/2018/12/27/style/tattoos-video-games.html
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wccrawford
"Lawyers generally agree that an implied license allows people to freely
display their tattoos in public, including on television broadcasts or
magazine covers. "

Seems to me that the digital representation of someone is just another way of
displaying themselves. If it's legal to do it in photos and videos, it's legal
to do it in 3D models.

But even without that, I think it's unethical to claim ownership to any part
of someone else's body and tell them what they can and can't do with it. (Laws
are an obvious exception to this.)

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michaelt

      If it's legal to do it in photos and videos,
      it's legal to do it in 3D models.
    

Perhaps it _ought to be by extension_ but apparently it's far from a settled
matter.

I mean, our copyright laws are full of weird seeming-contradictions. Games
companies pay to license an athlete's likeness, but photographers don't?
Photographs of a sculpture are copyright-protected, but photographs of tattoos
aren't? Architecture with an expired copyright can be lit up with lights to
regain copyright protection?

Copyright law isn't really amenable to deducing that one thing is legal just
because another very similar thing is legal.

~~~
PurpleBoxDragon
Not just copyright law. Look at the difference in laws being recording a video
of a person and recording sound of the same person. I would love for law to be
consistent, but as of yet there is no such requirement.

~~~
alasdair_
For more headfuckery, try to work out if you can record a video of the
soundwaves.

~~~
PurpleBoxDragon
You can. You record a high definition video of items and can possibly
determine the sound waves from the movement of the items. I've already seen
demos of this tech where you can restore the majority of a transcript of a
visually recorded conversation.

~~~
aidenn0
You technically can, but then it becomes illegal in most states.

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PurpleBoxDragon
Is there any case law on this? Given it is a recording of video, not audio,
how does the law treat the ability to convert video into audio? This would
make most video recordings where audio is illegal to also be illegal, if it is
so directly applied.

Another fun legal question is what happens if I add fake audio to a video
where the video is legal but the audio isn't, but I use legal audio recordings
to fake the voice of the person I videotaped? Does it matter if the injected
audio is close enough to what was originally said (say I remembered the words
while I recorded the video)?

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aidenn0
I assumed the post I responded to discussing _actually_ converting it to audio
rather than merely recording something that could theoretically be converted
to audio. In that case, it's just a different type of photo-microphone, which
is well established as audio recording.

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AWildC182
Disregarding the insanity of being able to wave your rights to a commissioned
piece of artwork, that you paid for, that's attached to your body...I think we
really need to rethink how video game content licencing works in the context
of copyright law. This is just the current iteration of a debacle that has
been ongoing since the first days of video games. Depictions of everyday
things are suddenly the property of the original creator of those things, even
if they are commodity items or very simplistic depictions. A good example is
when video game developers have to pay gun makers to depict their weapons in
games. I love FPS games but I would rather not have my money ultimately
funneled into the NRA lobbying machine.

~~~
clarry
Yea, I'm really frustrated with this situation as it relates to racing games.
Apparently it's ok to shoot photos and movies with real cars in them, but you
need to get a license to sell a game that models real cars? Nnngh. I think
it's insane. And these games vanish from stores as licenses expire.

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wmil
Lets get weirder. Can a plastic surgeon own the rights to someone's nose? It's
basically a sculpture.

~~~
wycs
It’s almost like intellectual property is an absurd injustice.

~~~
PurpleBoxDragon
Especially since it escapes taxation. If you taxed IP like you do real
property, we would see quite a different system form.

~~~
kstrauser
I wrote up a proposal for just that and sent it to Dianne Feinstein. I'm still
waiting to hear back.

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pacoWebConsult
She'll hold onto it until it's convenient to expose, just like she did with
the Blasey-Ford allegations.

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userbinator
The whole point of copyright protection was to prevent someone from freely
duplicating a work and thereby depriving the original artist of profit, but in
the case of a tattoo, I'd argue that every artistic tattoo is so slightly
different from each other and labour-intensive to create that it should really
be treated as "work for hire" and the human who owns the skin also owns the
tattoo on it.

~~~
kstrauser
When I got a tattoo, I literally hired an artist to take my general design,
make it look nice (and tweak it for the medium), and apply it. There's not
part of that process that _isn 't_ work for hire.

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giancarlostoro
Honestly if I'm playing a Basketball game the last thing I care about is the
detail on tattoos, just parody them...

This isn't such a crucial issue at the end of the day, I don't think you
should be able to copyright a tattoo, the design may change as the person
ages, or gets into a crazy accident, or whatever. Heck, when they die and
decompose / get cremated it's all gone.

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HelloFellowDevs
> “My tattoos are a part of my persona and identity,” Mr. James wrote in a
> declaration of support for Take-Two and 2K Games. “If I am not shown with my
> tattoos, it wouldn’t really be a depiction of me.”

It comes down to how realistic you want the game to be. With games that pitch
themselves as the pinnacle of being realistic with improvements made every
year, not having the correct tattoos would break the realism. Especially when
the most important athlete of his sports generation says that too.

~~~
giancarlostoro
That's a bit crazy to me, but if that's how he feels, it's not like any other
game will get any closer to it, that or they can blur the tattoo can't they?

On another note, if I buy a canvas painting from another artist, and then I
sell it for millions, but only paid $500 for said painting, can the painter
sue me for copyright despite the painting being my property? If not... why are
tattoos any different?

~~~
wmil
Because you aren't copying it. First sale doctrine, you're allowed to resell
your copy.

~~~
giancarlostoro
Ah right, so it would only be an issue if I were to start selling copies of
the painting that I forged, stole or something.

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gambiting
No, what's happening here is the same as if you had a painting in your house,
but for some reason pictures of your house were very popular and seen by
millions of people - and they all included the painting. You never made a copy
of the painting, but it's now featured on a lot of different media that the
original author never agreed to.

I still think it's BS, the tattoo on your body is _YOU_ \- not a separate
thing to you.

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AndrewKemendo
"He is just poaching on artists"

This is silly.

No game developer or otherwise is including an athlete's Tattoo as a selling
or differentiation point for a game. Said another way, nobody is buying a game
in order to see Lebron's Crown tattoo. If the artwork was original and not-
player specific such that a user could purchase it as DLC or something similar
to place on a custom character there would certainly be a case.

Seems like the legal construct of body artwork not being owned, but rather
licensed to the person who it was tattooed on is the problem.

~~~
pgrote
>No game developer or otherwise is including an athlete's Tattoo as a selling
or differentiation point for a game. Said another way, nobody is buying a game
in order to see Lebron's Crown tattoo.

There seems to be an appreciation of it by those who play the game. The linked
video in the article showing Mike Evans tattoos seemed to be newsworthy.

[https://www.youtube.com/watch?v=uvzTrtXXJ5I](https://www.youtube.com/watch?v=uvzTrtXXJ5I)

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tyfon
This sounds ridiculous to me.

So if someone snaps a photo of him or he is on TV the tattooist is going to
get royalties? That goes for anyone else that is tattooed as well.

~~~
kbsletten
No idea, but it seems like the news is allowed an exemption from royalties
because of "fair use" or whatever they call it in Europe now (maybe "protected
use" or something).

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mbrumlow
Seems to me the only logical thing to do in a digital world is to abadon the
idea of intellectual property?

~~~
watt
This with the other article doing some troll logic mental gymnastics trying to
convince us that dance moves/choreography should be copyrightable[1] (or
intellectual property) really brings out the point how absurd the notion of
IP/copyright is.

When will we see that the whole thing is a sham and needs to be abandoned?

[https://www.theverge.com/2018/12/20/18149869/fortnite-
dance-...](https://www.theverge.com/2018/12/20/18149869/fortnite-dance-emote-
lawsuit-milly-rock-floss-carlton)

~~~
userbinator
_When will we see that the whole thing is a sham and needs to be abandoned?_

Never, as long as there's enough people getting $$$ from it (and have the
power to influence such decisions.)

~~~
Nasrudith
To be fair they could also push it far enough to lead to a collapse by
competitive disadvantage from choosing stability over progress.

That has happened before at very least once when Commodore Perry came
a-knocking with a gunship to Japan.

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davidw
I'm old enough to remember when players were a few blocky pixels... the notion
of tattoos mattering is pretty amazing.

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Shorel
"What many people don’t realize, legal experts said, is that the copyright is
inherently owned by the tattoo artist, not the person with the tattoos."

Now this will be my argument against having tattoos :)

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onetimemanytime
If I hire someone to paint a portrait, and pay him it's mine isn't it? $5 or
$5 million, that was the price agreed.

Why is the tattoo any different?

~~~
Joeri
No, that’s not typically the case. Mostly copyright remains with the artist
that made the painting.

[https://www.thoughtco.com/who-owns-copyright-of-a-
painting-2...](https://www.thoughtco.com/who-owns-copyright-of-a-
painting-2578104)

The reality of copyright law is that strictly applied pretty much everyone
breaks it. Some infractions are worth enforcing, most are not.

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tgb
If you hire an artist to paint a landscape for you, do you have total
ownership of that painting? Could you recreate it digitally and sell it?
Assume no extra rights were explicitly transferred, just a standard commission
of a piece of art, whatever that entails.

I would have assumed that the answers to these were both yes, but this article
makes me think not.

~~~
stevehawk
You don't. It's a common topic in game development that if you hire a contract
artist that the contract needs to explicitly state that you retain the rights
of the work they produce for your project, otherwise they can yank those
rights should you have a falling out.

~~~
tempestn
At least here in BC, something like this applies to code as well. It's
considered written work in the same way as a novel, so any developers hired or
contracted need to explicitly sign over their "moral rights" to the work.

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vertline3
I feel intent should matter, is the intent to show the tattoo art? or to make
a likeness recognizeable? Mike Tyson has a tattoo on his head, is the intent
to convey a likeness of Tyson? or to sell the tattoo as a brand in itself(t
shirts and such as a logo)? I mean is it fair use?

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ineedasername
It seems like it might be a gray area (and, unfortunately as such, something
the courts need to resolve) but it's disappointing that NYT did not at least
broach the topic and possible applicability of the Work for Hire exception.

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mnm1
By this line of reasoning, companies don't own the code their engineers write
either. Art collectors don't own the art they paid for. Etc. What a bunch of
bullshit. Have these people not heard of work for hire? The artists were paid
for their copyright (in addition to the actual manual work). They no longer
own the copyright. That's the whole point of the transaction. That's the only
reason money was exchanged. No one in their right mind would get a tattoo they
couldn't display; something the artist could really demand if they held the
copyright. Does something this obvious seriously need litigation? That is some
serious misinterpretation of copyright law. As bad as our copyright laws are,
they can't possibly be this bad to allow these obviously bullshit cases to
stand, can they?

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juliusmusseau
I'm just hoping DannyBee posts something to this thread! (He's a lawyer).

[https://news.ycombinator.com/user?id=DannyBee](https://news.ycombinator.com/user?id=DannyBee)

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genieyclo
[https://www.gq.com/story/jr-smith-supreme-tattoo-
nba](https://www.gq.com/story/jr-smith-supreme-tattoo-nba)

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exabrial
What about a surgeon that alters a person's appearance?

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tbirrell
Shouldn't purchasing the tattoo transfer the rights to the person being
tattooed?

~~~
leetcrew
purchasing a work of art usually does not give you the rights to reproduce the
piece.

~~~
PurpleBoxDragon
But purchasing the time for a person to create a work for you generally does
give you the rights, as a work for hire. Thus temporary tattoos would be
copyrightable, but permanent ones that are created only once should not.

~~~
leetcrew
> But purchasing the time for a person to create a work for you generally does
> give you the rights, as a work for hire

AFAIK, this still needs to be explicitly stated in the agreement/contract. by
default the creator always owns the IP they create (in the US). this is why
software companies have to explicitly state that they will own the product of
your work when they hire you.

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Tepix
First world problems indeed.

~~~
gammateam
My favorite kind of problems to have.

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pvaldes
One of the problems is that a lot of athletes are massively tattooed
currently.

Tattoos were used since thousands of years for a particular job (apart of
decorative purposes): They excel hiding needle marks. Tattoos with a pattern
of multiple repeated x6 or x5 darkened areas arranged in a star or a circle
could be particularly useful to mask a weekly routine of steroids delivered
around some point of interest. In that sense some designs could be better than
other and became equivalent to any other industrial secret for their owner.

And this is only a part of the history. Tattoos showing trade marks or
copyrighted art are another problem.

