Random discussion topic: tattoo source copyright

https://www.abcactionnews.com/news/region-citrus-hernando/completely-turned-upside-down-tampa-bay-tattoo-artists-fear-industry-shake-up-from-kat-von-d-lawsuit

Long story short: a semi-famous tattoo artist referenced a picture (unclear how tight of a reference it was) by a semi-famous photographer for a tattoo she put on a customer. Photographer is saying that the photo was used without permission, no credit, and no compensation and has decided to sue.

Fair Use has come into the picture, and the courts are deciding who gets boned in this.  If the photographer gets boned, life continues.  If the tattoo artist gets boned then potentially the entire tattoo industry gets shafted as everything needs to be checked for copyright violations and such.

I didn't look at the images because I'm at Disney and the wifi is trash but- this actually holds a lot of interest for me, both as an "artist" and as someone who's protective of intellectual property. 

I also have long held the belief that there are two categories of what ill call tracers. Tracers that do it to learn their art. I've done it thousands of times. The easiest way for me to learn the structure of an image, composition of letters, etc- is to use an established ruleset, learn it, and break it down. I can then take the components and bring it back into my own groupings- many of which y'all have seen (and some of you have even given me money for!) 

THE OTHER is one I don't support in any fashion, and that's the guy that simply tries to pass off an image as their own without proper credit where credit is due. Now, not having seen the images in question, I don't know where this falls. See anything sold on temu/wish. 

I do not know the artist alleging the suit at all. I do know Kat Von D to be a world class portrait artist, especially in black and gray, where photocopy perfection is the goal. It's entirely possible that's what we have here- she really is that good. 

If I had to take a wild guess based on pure speculation and absolutely nothing else- someone's trying to bank. Kats got celebrity status. She was on TV. She dated Jesse James, among other people. She's got the portfolio to back it up. I've seen it before where an artist can be jealous of someone else's success (or luck, or both!) And decide a good old fashioned dick kicking is in order. It remains to be seen which one of these this is, or if she plain ol ripped the guy off. 

Sounds like Sedlik wants attention. "Hurr durr my mom says I'm a great artist why does no one know my name and I have no money?"

Interesting going after Kat though. She quit a while ago, renounced the profession, blacked out all of her ink, and "found god". So this is going back a couple years already, what took so long?

In any normal place this would be tossed immediately. But in the land of Disney copyright lawyers turned judges, it could do some serious damage to the industry.

Of course, for $100 you can buy a full tattoo kit on Amazon and do whatever you want with it, so it's like trying to put the expanding foam back in the can after it sets

In reply to Mndsm :

Of note is that KVD's defense includes that the tattoo in question was *not* a photographic reproduction. Her defense team alleges that while she used the photograph in question for inspiration (and had it hanging during the tattoo session), there are several significant details that she changed intentionally.

Perhaps the tattoo would be considered a derivative work, but if what the defense team holds water it's not the same as the original photograph. Also of note is that she did the work for free and has received no compensation directly from it.

That's where the tricky thing is, though: What is "compensation," and what is "fair use?" Can inspiration from a source be infringement upon copyright of that source? If so, what similarities or differences are sufficient to make the case and where is the line drawn? It does sound like there is precedent for this suit, so it's legally ambiguous right now. Additionally, while she may have received no direct compensation for the tattoo, does exposure or Instagram marketing count as compensation in any significant form?

Every tattoo artist I've met changes a design so they're not copying another artist. Even if you just pick a piece of flash off the wall.

In reply to brandonsmash :

That becomes a whole different ball of legalese. 

Let's use a well known example of something similar : rat fink. 

We all know who rat fink is. We also know who is arguably the most recognized rodent on this planet (he pays my bills, in fact) and any number of other derivatives, including one Charles entertainment cheese. Hell, I've got one of my own. Now, it's NEARLY impossible to make a "rodent" without drawing direct comparison to the Almighty himself. And as rico has alluded to, the mouse has more lawyers than God. At what point is say....my work fair use (which gets even trickier given the earliest iteration of said mouse is now public domain) vs flat out copyright infringement? How do you determine fair use based on a photograph? Me and 14 people can take a photo of the exact same thing and we can claim ownership of that image- and we all equally have the rights to do so. If I say "you used my photo to do the thing" it would be virtually impossible to prove in court. 

I guess in THIS case it comes down to- is this tattoo artists work truly original, is it derivative of someone else's work (which it probably is) did he lose on potential profit by someone FAR more known doing a riff on it (not likely) did she gain by doing the work (also not likely- she had all the work she could handle, and isn't even doing it anymore) was the use of the image in question considered fair use as a reference (probably, since there could be 1000 photos of the same damn thing) and MOST IMPORTANTLY

does it sound like everyone is being really stupid in this particular instance? 

If I thought Kat needed to knock off someone else's work to make a buck I might feel different. She's not that type. 

ShawnG said:

Every tattoo artist I've met changes a design so they're not copying another artist. Even if you just pick a piece of flash off the wall.

Funny you say this- the one tattoo I do have was an ill fated decision I made when I was 18, and is flash. It was done by the artist that DID the flash, and he still changed it. 

I've got a niece that got involved in some very heated online "discussions."

She does "circular Gallifreyan" artwork, and someone took one of her designs for a tattoo-- her artwork being turned into tattoos is apparently not that unusual.  https://www.etsy.com/shop/SirklesStudio

I don't want to put words in her mouth, but she didn't really get bent out of shape about someone reusing her artwork until it was being represented as someone else's creation.

Hm.  I wonder if part of the problem here is that a lot of people don't view still photography (especially portrait photography) as "art"?

It definitely is, but many people wrongly believe that the reason pro photography looks better than what they shoot with their iPhone is that "pros have better cameras".

Unless the tattoo artist did the work for free, fair use should not apply.  

it will be interesting to see how the interpretation of the law pans out.

Noddaz said:

Unless the tattoo artist did the work for free, fair use should not apply.  

Fair use actually doesn't have much to do with whether or not you charge for the work.

It would help a lot if the article showed the original picture and the tattoo in question.

Warner Brothers sure got a lot of free advertising with all those awful Tazmanian Devil tattoos in the early 90s.