Copyright and Tattoos Discussing the current legal trends in protecting the rights granted in the creation of tattoos. Presented by: Delia Ramirez Of Counsel at Hakimi Law, PC [email protected] P: 415-255-4503 Overview Copyright Overview Defenses How to obtain copyright De minimis Rights granted Implied License Fair Use Copyright as it relates to tattoos Initial Cases Copyrightable? Rasheed Wallace – Nike Commercial Rights for tattoos Mike Tyson – Hangover 2 Ownership vs. Authorship Carlos Condit – Video Game Types of Authorship NFL cases – Madden NFL 10 & 11 Ownership Current litigation Copyright Infringement Solid Oaks Sketchest vs. 2K Games, et al. What is copyright infringement James Haydan v. 2K Games, et al. Possible impact on entertainment industry How to obtain Copyright **Protects original works of authorship fixed in a tangible medium of expression. 1. Original 2. Fixed into medium 3. Expression 4. Protected Category– 8 types Ex: Literary works, musical works, pictorial and graphical works. Protects for life of author plus 70 years unless WFH or Corporation Registration required? No – protection Yes – file suit, statutory damages, attorney fees http://www.wpdlegal.com/wp-content/uploads/2017/04/Copyright-All-Rights-Reserved.jpg BUNDLE OF RIGHTS 17 U.S. Code §106 – Exclusive rights of Author Visual Artist Rights Act (1990) §106A- (Owner) of work disclosure or divulgation, which allows Reproduce the copyright work in copies the artist to determine when a work is complete and may be displayed; Prepare derivative works based upon the copyright work paternity or attribution, which allows an Distribute copies of the copyrighted work to the artist to protect the identification of his public by sale name with his own work, and to disclaim it when applied to another's; In the case of literary, musical, dramatic, and choreographic works, pantomimes, and motion the right of withdrawal, which permits pictures and other audiovisual works, to perform the the artist to modify or withdraw a work copyrighted work in public following publication; and in the case of literary, musical, dramatic, and choreographic works, pantomimes, and pictorial, integrity, which allows the artist to graphic, or sculptural works, including the individual prevent his work from being displayed in images of a motion picture or other audiovisual an altered, distorted, or mutilated work, to display the copyrighted work publicly; and form. In case of sound recordings, to perform the work publicly by means of digital audio transmission Is a Tattoo Copyrightable? tattoo is an indelible mark or figure fixed Copyright category? upon the body by insertion of pigment under the skin or by production of scars Pictorial (Webster’s Dictionary) Copyrightable? Absolutely Original, Creative Fixed Google Image Search 1/22/18 – Water Color Tattoos Authorship vs. Ownership Author and owner of the copyright are not always the same person/people. Author = mastermind of the work; superintended the whole work Single author –the author themselves unless otherwise agreed to OR a Work-For-Hire. Joint Authors – two people that work together and intend to have a joint work – Equal rights unless otherwise agreed to Work for Hire – the author is not the owner of the copyright. Rather it’s the person who hired the artist. (Two types) http://www.clipartpanda.com/clipart_images/famous-author-has-been-the-59701059 Work for Hire – Employee Employee within the scope of their employment. – No written agreement needed! 1. Employee – Where employer is actually “directing, or supervising the creation of the work” Factors: Control, Skill required to do the work▪︎source of tools/materials used to do work▪︎ duration of the relationship▪︎can hiring body assign other projects to worker▪︎who determines the duration of the work▪︎methods of payment▪︎who decides when assistants can be hired/who pays them▪︎ is work in ordinary line of business for hiring body▪︎ is creator in business for themselves Community for Creative Non-Violence v. Reid, 490 U.S. 730 (1989). 2. Scope of Employment 1. Is this the type of work that employee is paid to perform? 2. Did the work occur substantially within work hours and/or at the work place? 3. Was the work served in part for the employer? Work for Hire – Commissioned Project 17 U.S.C §101 – Following criteria must be met: 1. Commissioned – Created at the request of someone; 2. Created under a written and signed agreement; and 3. Created for the use in one of the following: Motion picture or audiovisual work – Most common for musicians. Ex: musical score, title song written for films, etc. Collective work – Collection of individual works such as an anthology, encyclopedia Compilation – work made by compiling a bunch of things Translation of a foreign work Supplementary work instructional text a test as answer material for a test, or https://translatorsdigest.files.wordpress.com/2015/06/contract.jpg as an atlas Copyright Infringement & Common Defenses 17 U.S.C. §501 Exploiting any of the exclusive rights of the copyright without the owners permission Distribute, Copy, Create derivative work, Perform, Display, Perform through digital transmission (Ex: non-interactive Internet radio) Prove Access Copy/Substantial Similarity No intent needed IMPORTANT: Make sure that work is registered with the copyright office before an infringement occurs. Common Defenses in Tattoo industry: Implied License, Fair Use, and de minimis De minimis The principle that copyright infringement is “not actionable” where “the copying of the protected material is so trivial as to fall below the quantitative threshold of substantial similarity.” Test: Observability of protectable elements in the allegedly infringing work from the perspective of the average lay person. Sandoval v. New Line Cinema Corp., 147 F.3d 215, 217 (2d Cir. 1998) (Case based on movie “Seven”) Tw o Factors: length of time the copyrighted work appears in the allegedly infringing work; and https://geekynerfherder.blogspot.com/2012/07/movie- its prominence in that work as revealed by the lighting and positioning of poster-art-se7en-1995.html the copyrighted work Implied License Orally or written 3 prong test set forth by 9th Circuit: (1) Licensor created the work at licensees request, (2) delivered the work to the licensee, and (3) intended for the licensee to distribute and copy the work. Main prong is INTENT. Industry Standard – Tattoo artists have conceded to the implied license to tattoo bearers as they live their life. http://www.thegloss.com/culture/celebrities-beat-the-paparazzi- pranks/ Celebrities – Display, distribution and copying are inevitable to an extent Fair Use 17 U.S.C. 107 - the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include— (1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes; (2) the nature of the copyrighted work; (3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and (4) the effect of the use upon the potential market for or value of the copyrighted work. Past Cases Reed v. Nike, Inc., No. 3:05-CV-00198 (D. Or. Feb. 10, 2005), dismissed, (D. Or. Oct. 19, 2005) https://i.ytimg.com/vi/bXPhGf8Bi74/hqdefault.jpg https://www.youtube.com/watch?v=bXPhGf 8Bi74 Whitmill v. Warner Bros. Entm’t Inc., No. 4:11-CV-752 CDP (E.D. Mo. Apr. 28, 2011), dismissed (E.D. Mo. June 22, 2011) Escobedo v. THQ, Inc., No. 2:12-CV-02470- JAT (D. Ariz. Nov. 16, 2012), dismissed (D. Ariz. Dec. 11, 2013) http://latimesblogs.latimes.com/.a/6a00d8341c630a53ef01543330fe6f970c-pi Allen v. Electronic Arts, Inc., No. 5:12-CV- 3172 (W.D. La. Dec. 31, 2012), dismissed (W.D. La. Apr. 9, 2013) http://mmapayout.co m/wp- content/uploads/2013 /09/Condit-tattoo.jpg Solid Oaks Sketches, LLC v. 2K Games, Inc., et al. Case NO. 1:16-cv-724-LTS-RLE https://media.operationsports.com/shots/1454375808-media.jpg James Hayden v. 2K Games, Inc and Take Two Interactive Software, Inc. Case No: 1:17-cv-02635 Photo from Hayden Complaint The Future Impact https://cdn.massagemag.com/wordpress/wp-content/uploads/AFMTE-News-Slider-7-30-15.jpg Questions? Delia Ramirez Of Counsel at Hakimi Law, PC [email protected] Case 1:16-cv-00724-LTS-RLE Document 77 Filed 08/09/17 Page 1 of 31 Dale M. Cendali Joshua L. Simmons KIRKLAND & ELLIS LLP 601 Lexington Avenue New York, NY 10022 Telephone: (212) 446-4800 Facsimile: (212) 446-4900 [email protected] [email protected] Attorneys for Defendants-Counterclaimants UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK SOLID OAK SKETCHES, LLC, CASE NO. 1:16-cv-724-LTS-RLE Plaintiff- Counterdefendant, v. 2K GAMES, INC. and TAKE-TWO INTERACTIVE SOFTWARE, INC., Defendants- Counterclaimants. MEMORANDUM OF LAW IN SUPPORT OF DEFENDANTS-COUNTERCLAIMANTS 2K GAMES, INC. AND TAKE-TWO INTERACTIVE SOFTWARE, INC.’S MOTION FOR JUDGMENT ON THE PLEADINGS Case 1:16-cv-00724-LTS-RLE Document 77 Filed 08/09/17 Page 2 of 31 TABLE OF CONTENTS PRELIMINARY STATEMENT ................................................................................................