Commercial Photography & Models With Tattoo's

Discussion in 'Commercial/Product photography' started by donny1963, Mar 4, 2017.

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  1. donny1963

    donny1963 No longer a newbie, moving up!

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    Here is a subject that is in the courts today, there are tons of court cases being tried in civil litigation, that may interest you photographers who plan to publish their work.

    The Subject is Models with Custom Design Tattoo's, this doesn't apply to Flash Art Tattoo's
    Lets say a model has a unique design tattoo on her body, and She is to appear in Vogue Magazine or some other publication commercial print, and the picture of the model is taken, and the
    Custom Tattoo Is Displayed.

    This could cause a problem for Vogue Magazine or who ever intends to publish such photography.
    WHY?
    Well the Model can sign a model release to get her picture published, but what about the Ink Art?
    the artist who designed this ink and placed it on the model is the original copyright holder of this art, So can the publishing company legally print this picture with the tattoo art showing without expressed permission of the tattoo artist With out a lawsuit?

    Right now the answer is unknown, because this very same type of case is now in civil federal court.
    it seems a famous model had her picture published in the nude, with this tattoo art clearly displayed..

    The argument in court is the tattoo artist didn't give this publishing company permission rights to print such art that the tattoo artist owns..

    So if the courts go in favor of the tattoo artist this could change Commercial photograph and Even Movie & TV for ever, no movie production would legally be able to cast an actress or actor in a move or TV show with any of their custom art tattoos' displayed with out paying off the tattoo artist..

    Now so far the lawyers are fighting this out, one lawyer is saying the tattoo artist should not be able to invoke copyright's for printing such art on a canvas they don't own,

    Such as a human being, and such art was printed on a person for public display and forfeits all copyright ownership in that aspect, Just as in a case back in 1979 came up where a graffiti artist took Gabe Kaplan, the creator of welcome back kotter tv show to civil court claiming the graffiti was his art work and didn't get permission to record this on film for public broadcasting.

    The federal case was take out in 1979, the actual recording of the graffiti was recorded in 1974
    this graffiti was drawn on a subway car in the begining of the intro of the Tv Show.

    The graffiti artist lost the case, where the judge claimed that the artist had no claim to any created art for the reason that the art was created on a canvas that this artist didn't own, also the fact that the artist created the art on a public venue where it was intended to be displayed in public making any recording or photography of such art fair use.

    This argument may take a play in Body art where the artist does not own the canvas ( human being) and intended for public display and making any recorded video or photograph a fair use even tho the picture would be used commercially.

    Welcome back kotter tv show had created an intro for the TV show where 90% of it was recorded in public in the city of New York making any such recorded film fair use.
    Such Body Art may be seen in the same manor..

    How ever if the courts favor in the tattoo artist case, this could change photographing models or casting actors / actress in Movies or TV show with such body art in display..

    For instance, jason statham has appeared in many motion pictures, and has some custom body art, will the artist of such ink be able to claim Damages for having them appear in these movies with out express written permission, time will only tell what the outcome will be..

    NOTE: they was a law suit just like this, with Mike Tyson, where is body art on his face was re-created on another actor for a move ..

    he man who gave Mike Tyson his distinctive facial tattoo has
    sued Warner Bros. over the similar-looking facial art on Ed Helms' character in the upcoming The Hangover: Part II.

    So what will happen, Can a photographer take a picture of a model in the nude with her custom tattoo's showing in the picture with out the dangers of being taken to civil court?
    as i said time will tell, and this may change the way commercial photography with models who have tattoo's forever..


     
  2. john.margetts

    john.margetts No longer a newbie, moving up!

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    In English law it is fairly clear. A photograph OF the tattoo would be a breach of copyright. A photograph of the model which incidentally includes the tattoo would not be.

    Otherwise, street photography which includes all those copyright clothes and signs and such would be impossible.
     
  3. smoke665

    smoke665 TPF Supporters Supporting Member

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    So a model/actress/actor that regularly poses in the nude could be considered a "public venue"??? How many exposures would be considered enough to make it "public", and by extension couldn't the model/actress/actor's entire body then risk coming under a "public venue" claim?
     
  4. donny1963

    donny1963 No longer a newbie, moving up!

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    Not exactly public venue, how ever tattoo artist should not be able to claim copyright of such art o ones body if it happens to be in the photograph is the question.

    one of the reason as i stated would be that the Art was intended to be displayed, lets say a girl or a guy gets a tattoo on his face or his neck, the artist would be creating such art to be displayed, that' would be the art's intention just as some one draws art on a wall or bridge, (graffiti) just because it was photographed, the artist can't claim copyright breach.

    An emerging but largely unsettled issue in copyright in the United States regards photographers taking pictures of people with tattoos and then selling the image. The problem is that the tattoo artist designed and has some copyright protection over the design, and you using that design in the photo may be a violation of copyright in some situations.

    Most photographers are unlikely to face this situation, but it can happen, and it's best to understand the issue first.

    The short answer to this question is that it's entirely unsettled in case law, depends on facts of each individual use, and we just don't know. While there are certainly guiding principles and best practices, the truth is that we don't know how photographers can use tattoos in photographs while staying out of trouble.

    BEST PRACTICES FOR PHOTOGRAPHERS

    this area of law is far from settled, so it's difficult to know what is and is not okay. The following are the business practices that I personally am going to follow regarding tattoos in my photos. I'm a lawyer, but I'm not your lawyer, so you're best to confer with your own counsel licensed to practice in your own jurisdiction before making the decision for yourself. This article is for educational purposes only and is not legal advice.

    • If you photograph someone famous with tattoos, get a release from the tattoo artist first before publishing the photos. Why? Because famous people are magnets for lawsuits, and you don't want to be caught in the middle.
    • Don't publish photos that feature a tattoo as a central feature of the photo. You're much less likely to run into disputes where the tattoo is only an incidental part of the image.
    • Never take the tattoo design and put it on another medium. For example, don't take a couple's heart tattoo designs and use it on a wedding album.
    • Watch out for tattoos that feature an obvious infringement of another's rights. For example, a tattoo of the Nike swoosh or a famous person's likeness or a batman symbol. That drags yet another party into the fight over the copyright, and likely a party with deep pockets and a strong desire to protect the mark, image, or likeness.
    • Don't sell photos with tattoos as stock. You never really know where a stock photo is going to end up. It could be in a movie, on a billboard, on the packaging for a product, etc. Photographers should hold themselves to a higher standard when it comes to selling photos as stock because the image could be very widely distributed, and in a way that you cannot control. Many stock agencies will not accept photos with tattoos for this reason.
    • Don't get paranoid. You're extremely unlikely to run into trouble if you're following these best practices.

    RASHEED WALLACE AND THE NBA

    Rasheed Wallace, the NBA star, was featured on a Nike commercial discussing his tattoo. That tattoo had been designed by tattoo artist Matthew Reed, who took issue with images depicting that tattoo. One significant factor in this case that would differ from that of a typical photographer situation is that the videographer animated the drawing of some of the tattoos, thus creating a derivative work.

    For photographers and videographers, this case would directly answer the question of whether or not you can photograph someone with a tattoo and profit off the images. This case was unlike the Hangover case where the design was taken from Mike Tyson and put on another person.

    Unfortunately, this case also settled out of court–giving photographers no precedent to follow.

    CONCLUSION
    It will be interesting to see how the law figures out these interesting questions about photographers and tattoos. It's a complicated dance of the rights of multiple parties.

    However, this is unlikely to become an issue for most photographers as long as you follow the best practices listed above.


    But the question still remains what will happen in the situation of photographer taking a picture of a model with any such tattoo displayed
    in the photography and be published?
     
  5. donny1963

    donny1963 No longer a newbie, moving up!

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    Not really clear cut, i would be careful of photographing a person with such tattoo art displayed , and then publishing the picture you could end up in court as others have, and settled out of court..


    An emerging but largely unsettled issue in copyright in the United States regards photographers taking pictures of people with tattoos and then selling the image. The problem is that the tattoo artist designed and has some copyright protection over the design, and you using that design in the photo may be a violation of copyright in some situations.

    Most photographers are unlikely to face this situation, but it can happen, and it's best to understand the issue first.

    The short answer to this question is that it's entirely unsettled in case law, depends on facts of each individual use, and we just don't know. While there are certainly guiding principles and best practices, the truth is that we don't know how photographers can use tattoos in photographs while staying out of trouble.

    BEST PRACTICES FOR PHOTOGRAPHERS

    this area of law is far from settled, so it's difficult to know what is and is not okay. The following are the business practices that I personally am going to follow regarding tattoos in my photos. I'm a lawyer, but I'm not your lawyer, so you're best to confer with your own counsel licensed to practice in your own jurisdiction before making the decision for yourself. This article is for educational purposes only and is not legal advice.

    • If you photograph someone famous with tattoos, get a release from the tattoo artist first before publishing the photos. Why? Because famous people are magnets for lawsuits, and you don't want to be caught in the middle.
    • Don't publish photos that feature a tattoo as a central feature of the photo. You're much less likely to run into disputes where the tattoo is only an incidental part of the image.
    • Never take the tattoo design and put it on another medium. For example, don't take a couple's heart tattoo designs and use it on a wedding album.
    • Watch out for tattoos that feature an obvious infringement of another's rights. For example, a tattoo of the Nike swoosh or a famous person's likeness or a batman symbol. That drags yet another party into the fight over the copyright, and likely a party with deep pockets and a strong desire to protect the mark, image, or likeness.
    • Don't sell photos with tattoos as stock. You never really know where a stock photo is going to end up. It could be in a movie, on a billboard, on the packaging for a product, etc. Photographers should hold themselves to a higher standard when it comes to selling photos as stock because the image could be very widely distributed, and in a way that you cannot control. Many stock agencies will not accept photos with tattoos for this reason.
    • Don't get paranoid. You're extremely unlikely to run into trouble if you're following these best practices.

    RASHEED WALLACE AND THE NBA

    Rasheed Wallace, the NBA star, was featured on a Nike commercial discussing his tattoo. That tattoo had been designed by tattoo artist Matthew Reed, who took issue with images depicting that tattoo. One significant factor in this case that would differ from that of a typical photographer situation is that the videographer animated the drawing of some of the tattoos, thus creating a derivative work.

    For photographers and videographers, this case would directly answer the question of whether or not you can photograph someone with a tattoo and profit off the images. This case was unlike the Hangover case where the design was taken from Mike Tyson and put on another person.

    Unfortunately, this case also settled out of court–giving photographers no precedent to follow.

    CONCLUSION
    It will be interesting to see how the law figures out these interesting questions about photographers and tattoos. It's a complicated dance of the rights of multiple parties.

    However, this is unlikely to become an issue for most photographers as long as you follow the best practices listed above.


    But the question still remains what will happen in the situation of photographer taking a picture of a model with any such tattoo displayed
    in the photography and be published?
     
  6. Designer

    Designer Been spending a lot of time on here!

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    This is a very stupid argument. Why do the B Law school grads get these cases? The lawyer has chosen to argue a case that will be very difficult, if not impossible, to win.

    Common sense be darned.
     
  7. KmH

    KmH Helping photographers learn to fish Supporting Member

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    Copyright and Trademark are different things.
    United States Patent and Trademark Office
    Good luck copyrighting clothes, signs, logos:
    What Does Copyright Protect? (FAQ) | U.S. Copyright Office
    https://www.copyright.gov/circs/circ01.pdf
     
  8. table1349

    table1349 Been spending a lot of time on here!

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    Well considering that the Maori could have sued the Tyson's tattoo artist for using their ancestral tattoo art, I agree that is about as stupid of argument as there ever was.
     
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  9. smoke665

    smoke665 TPF Supporters Supporting Member

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    And we agree. Wasn't trying to be argumentative, just to illustrate that there's always a Pandora's Box when judges get involved in "interpreting" law. We all know to well, how certain rulings of the past few months, have actually resulted in legislation from the bench, constructing an interpretation beyond the scope of the original law.
     
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  10. JonA_CT

    JonA_CT TPF Supporters Supporting Member

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    Anyone else see the irony in the fact that the OP has copied and pasted information without any attribution in every post he has made in this thread?
     
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  11. donny1963

    donny1963 No longer a newbie, moving up!

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    the article is public domain it's everywhere lol
     
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  12. donny1963

    donny1963 No longer a newbie, moving up!

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    Not really that stupid, it's in the courts now, this is all going to depend on how the judges interprets the copyright laws in this issue.
    The choice they make could effect on how Models or actors are published on print or film.
    If the courts side with tattoo artists, then any one's photograph published with art on the body showing, would not only have to get a release
    from the models or talent, they would also need one from the tattoo artist..
     
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