Gulp: tattoo copyright now officially videogames' problem | PCGamesN

Alone in the Dark: Illumination beta starts soon, but only if you buy the game

Minecraft 1.8.2 pre-release gets its 5th update, fixing udders and other things

Offworld Trading Company is bringing Martian capitalism to Early Access

Gulp: tattoo copyright now officially videogames' problem

Copyright law is guided by precedent, and recent signs point to future trouble for publishers with real-world tattoos in their games. Legal tongues were sent wagging after the body artist behind Mike Tyson’s face thing settled a Hangover lawsuit with Warner Bros. two years ago. And now the scribbler of professional mixed martial artist Carlos Condit’s ribcage lion tattoo, seen in UFC Undisputed, has approached a US bankruptcy judge to value the worth of an infringement claim against THQ.

Yup: bankrupt THQ.

Under US copyright law, tattoo art qualifies for protection as “an original work of expression fixed in a tangible medium”.

The artist in question, Christopher Escobedo, originally sued THQ back in November. Thanks to THQ’s expiration shortly thereafter, his lawsuit has since played out in bankruptcy court.

Escobedo initially filed a claim for $4.16 million - by his reckoning, he was entitled to a 2% cut of all post-bankruptcy sales of UFC Undisputed. The bankruptcy judge disagreed, instead valuing the claim at $22,500 - the same amount Condit himself was paid for the use of his image in the game.

Here’s where things get interesting, however. Escobedo’s attorney asked the judge to reconsider. He pointed out that 4.1 million units of UFC Undisputed had been sold, and that former Interim UFC Welterweight champion Condit was one of the “most popular figures” in the game. Furthermore, the tattoo in question is reportedly visible for a full 15 minutes in the game’s opening.

Therefore, he suggested, the court should determine “what royalty a hypothetical negotiation between Escobedo and THQ would have produced” - adding that the tattoo image was in some respects more valuable to THQ than the music licensed for the game.

“THQ had literally millions of songs to choose from when deciding what music clips to include in its games,” read the motion for reconsideration. “There was no restriction on their choice. Thus, they had the opportunity to choose the least expensive music license they could get. To produce a UFC computer game, however, THQ had a limited number of fighters to choose from and had no choice but to either not include the fighter's tattoo on the avatars or include it. 

“That fact alone would have placed Escobedo in a very different bargaining position than the music publisher and makes it likely that Escobedo would have negotiated a per game royalty rather than a one-time fee.”

In response, THQ’s reps made a series of persuasive points: that one tattoo among over 100 fighters represented “exceedingly low value” (somebody ought to check these documents for the name ‘Kipling’); that there was a “likelihood” that a tattoo on another person’s body wasn’t copyrightable; that Condit’s licensing of his own image probably covered the tattoo too; and that, in any case, Condit should be considered the inky lion’s “joint author”. 

The bankruptcy judge ultimately kept his valuation at $22,500 - THQ had moved for a slightly cheaper $0 - but Escobedo is now appealing the order to a group of judges on a bankruptcy appellate panel.

After racking our brains for prominent in-game tattoos, we’ve come up with only BioShock Infinite and Far Cry 3: though I reckon their wholly fictional conception leaves 2K and Ubisoft safe from this sort of thing. Can you think of any others?

Thanks to @gamerlaw and the Hollywood Reporter for this one.

Login or Register
2
+2
-0
Sax's picture
156

Mirror's Edge, of course.

1
+1
-0
Jeremy Peel's picture
114

OF COURSE.

Try these free to play games
?

These are affiliate links - clicking them and playing the games directly supports PCGamesN

Spotlight
?

Our Spotlight units plug content our journalists have made, that our advertisers want to promote. Sometimes the promotion is paid for, but the content they go to is always independent with no client oversight or approval.


Alienware - Game VictoriousTurtle Beach
Hands on with Blitzkrieg 3

Blitzkrieg 3

Hands on with Blitzkrieg 3

Alone in the Dark: Illumination beta starts soon, but only if you buy the game

Alone in the Dark: Illumination beta starts soon, but only if you buy the game

Minecraft 1.8.2 pre-release gets its 5th update, fixing udders and other things

Minecraft 1.8.2 pre-release gets its 5th update, fixing udders and other things

Offworld Trading Company is bringing Martian capitalism to Early Access

Offworld Trading Company is bringing Martian capitalism to Early Access

World of Tanks Grand Finals 2015 announced; expect lots of hot tank on tank action

World of Tanks Grand Finals 2015 announced; expect lots of hot tank on tank action

Might and Delight's Shelter 2 trailer uses cuteness like a weapon

Might and Delight's Shelter 2 trailer uses cuteness like a weapon

The rise and rise of Wargaming: Part 1: Prelude to War

World of Tanks

The rise and rise of Wargaming: Part 1: Prelude to War

Ubisoft is removing games purchased through unauthorised retailers from Uplay accounts

Ubisoft is removing games purchased through unauthorised retailers from Uplay accounts

Flight Simulator X makes some Dangerous Approaches in its first add-on in yonks

Flight Simulator X makes some Dangerous Approaches in its first add-on in yonks

Far Cry 4 expands its territory with another lot of DLC missions: Hurk Deluxe

Far Cry 4 expands its territory with another lot of DLC missions: Hurk Deluxe

Tomb Raider comes free with Lara Croft and the Temple of Osiris on the Square Enix Store

Tomb Raider comes free with Lara Croft and the Temple of Osiris on the Square Enix Store

Dragon Age: Inquisition had

Dragon Age: Inquisition had "by far" the most successful launch in BioWare history

H1Z1 Early Access Review

H1Z1

H1Z1 Early Access Review

Elite: Dangerous update 1.07 sees off cargo duplication and crashing

Elite: Dangerous update 1.07 sees off cargo duplication and crashing

Blizzard nerf Undertaker after Hearthstone balance wobble

Blizzard nerf Undertaker after Hearthstone balance wobble

Doom is the subject of the next Mythbusters episode

Doom is the subject of the next Mythbusters episode

The 100 Best Minecraft Skins

The 100 Best Minecraft Skins

World of Warcraft now does selfies (with black-and-white filters if you want them)

World of Warcraft now does selfies (with black-and-white filters if you want them)

Sponsored: Six ways Alienware are rebooting the gaming laptop

Alienware

Sponsored: Six ways Alienware are rebooting the gaming laptop

Striking Unreal Engine 4 tech demo looks good enough to live in

Striking Unreal Engine 4 tech demo looks good enough to live in

Magicka 2's new trailer explores the complex relationship between vampires and wizards

Magicka 2's new trailer explores the complex relationship between vampires and wizards

Dying Light first impressions

Dying Light first impressions

Valve confirms CS:GO match-fixing allegations, issues bans to seven players

Valve confirms CS:GO match-fixing allegations, issues bans to seven players

Grey Goo PC review

Grey Goo PC review