Warner Bros. Forced To Fight For Fair Use

V-similitude writes with news that Warner Bros. has been forced into a position of claiming 'fair use' in the defense of an upcoming movie. From the NYTimes: "In The Hangover Part II, the sequel to the very successful what-happened-last-night comedy, the character played by Ed Helms wakes up with a permanent tattoo bracketing his left eye. The Maori-inspired design is instantly recognizable as the one sported by the boxer Mike Tyson, which is part of the joke. (Mr. Tyson makes an appearance in both films, playing himself.) But S. Victor Whitmill, a tattoo artist formerly of Las Vegas and currently from rural Missouri, doesn't quite see the humor. Mr. Whitmill designed the tattoo for Mr. Tyson, called it 'tribal tattoo,' and claims it as a copyrighted work. ... Warner Brothers in its brief also invoked the 'fair use' defense for Hangover Part II, namely the right to parody what has become a well-known tattoo since it first appeared on Mr. Tyson’s face in February 2003."

Comments

Fair use when it suits them

[betterunixthanunix]

For Hollywood, copyright has one meaning: inflating their profits. Unfortunately, almost everyone in America has forgotten that copyright is supposed to exist to improve the people's access to works of art and science, not just to make money for copyright holders, and so Hollywood manages to get away with their abuse of our legal system.

Re:Fair use when it suits them

[Stormthirst]

And you have completely mis-read the OP. He's not arguing that people should be able to pirate Hollywood's content as and when they please. He's arguing that Hollywood abuses the legal system, and does so to extort more money out of the people than Hollywood are due by suppressing Fair Use, and in this case parody. The irony here (seeing as you don't seem to understand it) is that WB are using the parody clauses of copyright law to get out of paying someone damages.

Re:Fair use when it suits them

[Omnifarious]

You seem to think that the goal of the system is to give you open access to anything you want on your terms. That has never been the point of copyright. The point has always been to set up a system whereby creation can be incentivized - which works wonderfully well. We have more creative output and more access to it now than ever before, and every trend is upward.

That shouldn't mean everyone gets what they want when they want it merely because they want it.

Yes, anytime anybody criticizes copyright in any way, you should accuse them of being a deadbeat or a thief. You go on with your bad self!

I had a co-worker who did this. Discovered later he was being paid 20% more than I was, and he did poorer work that was eventually thrown away. But, as they say, correlation is not causation.

Re:Fair use when it suits them

[trout007]

Did you ever wonder why the movie industry is located in Hollywood? It was because Edison who owned the patent to motion pictures was very strict as to the types of movies that could be made. So all of the famous studios you know today were started out west where they could easily avoid the patent enforcement that was happening back east.

Re:Fair use when it suits them

[Omnifarious]

Actually, in the creation of software, it loses. There is a reason that about 80% of the startups around here use Open Source software.

I think the reason we have more creative works and greater access to them than at any point in history is because of the Internet. And these things are happening in spite of copyright law, not because of it.

Re:Fair use when it suits them

[ThosLives]

That has never been the point of copyright. The point has always been to set up a system whereby creation can be incentivized - which works wonderfully well.

This philosophy makes me sad. Not because it's wrong, or because it's right, but because it indicates that people think the most compelling reason to do something is because of monetary or other material gain.

(I would argue that we would have just the same, if not more, cultural and technical innovation if we had much weaker copyright and patent systems, because people would actually have to work hard to produce things of extraordinary value in order to gain from them.)

Re:Fair use when it suits them

[icebraining]

There was never a time after the invention of recording of music and video without copyright, so it's completely impossible to determine if copyright helped or hindered the creation and access to music and films.

Re:Fair use when it suits them

[michelcolman]

Hey, I just had a great idea! Ley's abolish copyright for a decade or so to see what difference it makes. For science.

Re:Fair use when it suits them

[second_coming]

Not at all. The design belongs to the artist, Tyson effectively has a 'print' of the original design and does not have the right to let others recreate it.

Re:Fair use when it suits them

[QuasiSteve]

Wait.. did I miss it? Were the authors of Star Wreck: In the Pirkinning sued by LucasFilm / Paramount / any of the other companies involved with the Star * sci-fi series?

Because I"m pretty sure that downloading/uploading a copy of a movie doesn't fall under most interpretations of the 'fair use' doctine, whereas satire and parody (see story) do.

I would argue that Mr. Tyson is part of the 'work', and by modifying the work of art by putting it on the other guy's face for parody purposes, means the original artist can go bugger off.

If he really wants to try to lay claim somewhere, he should go after the tattoo artists that tatoo'd Mike Tyson + tattoo on somebody else's body:
http://isportacus.com/wp-content/uploads/2009/06/mike-tyson-tattoo1.jpg

But I guess there's less money in that.

Re:Fair use when it suits them

[Anonymous Coward]

Actually, Tyson does not own the copyright to his tattoo. He was merely licensed to display it. Says so in the EULA posted above the door in the tattoo parlor where he got inked.

Re:Fair use when it suits them

[vadim_t]

And it fails quite badly at that.

For instance, why is LOTR still under copyright? Somebody is obviously getting all those royalties, but how does that incentivize creation?

If incentivizing creation is the true goal, then copyright should be much shorter, perhaps the original length of 17 years. Authors should have a good reason for producing multiple works during their lifetime even if they strike gold (especially those, as they proved they can write good stuff), and publishers and similar should be encouraged to find new authors instead on relying on collecting the benefits of works created a century ago.

But copyright keeps getting pushed to an ever longer length, because its current purpose isn't about incentivizing creation, it's about owning as many works as possible and collecting profit from them, which gets easier the longer copyright lasts.

Re:Fair use when it suits them

[JAlexoi]

Not really. Both deal with rights to profit from results of intellectual activity.

Re:Fair use when it suits them

[lennier1]

True, one is generating a shitload of money for lawyers and the other ... oh wait! ;)

Re:Fair use when it suits them

[Undead Waffle]

Patent and copyright are two very different beasts....

So different, in fact, that there is only one clause in the Constitution granting Congress the power to create both of them.

Re:Fair use when it suits them

[Runaway1956]

The system simply does NOT work. Your position seems to be similar to Hollywood's position that copyright "entitles" you to a constant income forever, and ever, amen. And, probably ditto with patents.

Neither system was meant to ensure that any author or inventor could sit on his arse for the rest of his life, while his "intellectual properties" generated wealth for him. They were ONLY meant to ensure that if ANYONE were to make a coin from his works, then he should get some of it, for a limited time.

The time limits have been raped unrecognizably, fair use has been treated similarly, and parody the same.

What is a reasonable time limit on copyright? How about 15 years for most forms of print, movies, and other media. And for software, 7 years. If there is money to be made from any copyrightable material, that money should have been made within those time frames. After that - it's public domain. And, I don't give a small rat's ass for any arguments to the contrary.

Re:Fair use when it suits them

[Omnifarious]

Open Source software is valuable precisely because strict exclusive ownership rights are not exercised over it. Yes, there are licenses like the GPL. But they do attempt to enforce continuing joint ownership by society at large, not exclusive ownership by the creator.

I, personally, avoid using software that isn't Open Source, and I generally refuse to use non-Open Source software in certain situations. Proprietary software frequently has negative value to me. The exercise of strict ownership over it has leached it of all value it might otherwise have possessed.

Re:Fair use when it suits them

[arb phd slp]

Could it be argued that the tattoo is a "work for hire" and Tyson, as the client who commissioned it, owns it?

Re:Fair use when it suits them

[PopeRatzo]

I'm saying we, right now, have more creative works and greater access to them than at any point in history.

Yes, but it's all illegal.

Personally, as someone who makes a living from my own creative work, I believe access to creative work is more important than obeying the law.

Re:Fair use when it suits them

[PopeRatzo]

Hey, I just had a great idea! Ley's abolish copyright for a decade or so to see what difference it makes. For science.

I've been pushing that idea since at least the turn of the century. And not just "for science", but for the good of all of us, including the creative artists.

I know you're attempting sarcasm, but I believe that abolishing intellectual property would be beneficial all around. It would be good for business, for the economy, for consumers, for artists. The only people that would not be happy are the media executives and patent trolls who have never created anything in their lives.

Re:Fair use when it suits them

[pugugly]

And by 'every trend' make sure you include ridiculous patents, copyright trolls, and creating 'intellectual property' such as business method patents that were never intended to be patented in the first place.

All that said - actually given the copyright protection extended to furniture design and other such items in movies (which I don't think merit protection), a tattoo design definitely qualifies as art under copyright (And frankly, might qualify evenn if it hadn't been so overetended). Warner Brothers isn't commenting on or parodying the tattoo itself - they really don't have a leg to stand on regarding fair use.

Pug

Pug

Re:Fair use when it suits them

[Dachannien]

At the time, however, the equipment that allowed you to create and/or view the motion pictures was covered by Edison's patents, and so it gave him significant leverage in imposing morality codes on what people produced using that equipment. Read up on Edison sometime - he was a complete asshole not satisfied with making shitloads of money when he could also gain total control over whatever he touched.

http://en.wikipedia.org/wiki/Motion_Picture_Patents_Company

Re:Fair use when it suits them

[LordLucless]

No, Stallman owns a butter knife, and thinks it is a katana.

If it really was, the beast would've been slain decades ago.

Re:Fair use when it suits them

[Tharsman]

Both are forms of intellectual property, but both are still very different in scope and execution.

Patents cover inventions. Also, patents require thousands and thousands of dollars to apply for, and it may take millions to defend against a patent claim. It can take at least 5 figures to attempt get a patent invalidated, no matter how unfair it is or how much prior art there may be. Patents also work as a blockade, as soon as you have them, you can legally stop anyone from inventing something that is too similar or depends on similar ideas, even if the new inventor had no knowledge of the existence of your patent.

Copyright covers arts and literature. Copyrights are automatic. As soon as you write a page of a short story or do a doodle, the copyright belongs to you. Although a copyright case can also eat a lot of money, it is focused on proving the infringing artist was aware of your work before he made his. If he had no clue of it, and you had no evidence to the contrary, there is no case. If you have evidence, then things can get more complex and things like Fair Use come into play. Copyrights do not work as a creative barricade. As long as my work is unique enough, similitude or reuse of certain ideas is fair game, even if you were aware of the original art.

Without copyrights, a writer that comes up with a script and attempts to sell the script to a studio can forget about it. As soon as he shows the script, the studio would be able to just make the movie and never give a penny back. An indie developer would also get screwed. He would spend months or years working in a game, publish it, and now any big studio can decide to just copy his work and sell it in big stores without giving him a penny.

The only problem right now with copyright law, is how it's used by the music industry to harass civilians, specially the use of precedent to claim absurd amounts from theses poor people, cases that were originally ruled upon the idea that a big corporation doing the infringement should not feel the consequences of being caught to be negligible. Citizens should not be pursued under that same standard.

Patents are horrible, and turn the inventing into an over encumbered practice. You are expected to do insane amounts of research before you can even proceed with the most ridiculously small segments of inventions, you may find that a round knob in a centered position on the top of a box to be patented. It is nearly impossible to do and ends up making it a huge gamble for anyone but large corporations to invent anything without running the risk of being sued to bankruptcy.

Patents need to be killed. They are horrible and just get in the way of progress, counter to what they were designed to do. Products name and design should be allowed to be copyrighted as the only way to protect the creator from being ripped off.

Re:Fair use when it suits them

[MikeBabcock]

Both patents and Copyright are excellent, in the form described by Congress originally.

Copyright and patents as (very) limited times for authors to have power over those who would steal their inventions is worthwhile and good for any economy. However, 100+ year Copyrights and absurd "barely any different" patents that act as infinite extensions are not.

The system needs reform, not demolition.

Re:Fair use when it suits them

[trout007]

I used to think similar things. But I kept seeing how the system was being abused. I read the following book Against intellectual Property. As one would expect this book is public domain. It gives examples from history and ideas for the future about how creative people can still make money without intellectual property rights. Thing food and clothing. Recipes and designs cannot be copyrighted. Yet these industries thrive and the creative people make money inspire of copies. The one part of intellectual property the author finds the sleast offensive is trademarks. Copying a trade mark is akin to fraud since you are claiming the product you made is made by another company.

http://mises.org/journals/jls/15_2/15_2_1.pdf

Re:Fair use when it suits them

[dryeo]

It was never really about the creator. Rather it has always been about the publisher. Way back in 1695 when the Licensing of the Press Act (1662) expired, the publishers (then known as stationers) first pushed for renewal for censorship purposes. When that failed they brought up the inherent right of ownership of the authours. They did this well knowing that the only option for an authour was to sell all rights to the stationers.
When copyright was first being introduced the stationers argued for infinite ownership so they could always profit, not the creator.
This continues to this day. We have movies such as Forest Gump, The Titanic, The Lord of the Rings trilogy that even though wildly successful, never made a cent according to the Hollywood accountants.
We'll never see the sequel to Forest Gump made into a movie because the creator didn't make any money from the movie.
Read up on Hollywood accounting, and the record labels use similar accounting methods that see the actual creator just going into debt for their work even when it is somewhat successful.
The "Its for the Artists" has always been misdirection due to it really being about the publishers and if you look into it, it has mostly been the publishers who have pushed the endless copyright extensions, the laws against fair use and most of the other extensions to copyright law. The exceptions have usually been relatives of the artist who think they are entitled to never work due to accident of birth.

Re:Fair use when it suits them

[dryeo]

Patents were broken long ago. The innovations related to the steam engine were delayed by decades due to patents.
A more recent example is the airplane. Once again due to patents innovation was stifled until the patents expired or were taken away by immanent domain due to the First World War.

Big Deal

[Oxford_Comma_Lover]

The major content producers are Pro-IP because it's where all their money is, sure, but the argument WB is making is that it's a parody, and *nobody* in the US comes close to saying parodies are not okay, because courts would reject that argument. Kind of like how in the recent video game case, the real trick was trying to get around any reasoning that meant the government could ban books.

The First Amendment makes it really hard to argue parodies are not okay.

Re:Big Deal

[hedwards]

Except that this isn't parody by any reasonable definition. Which is going to be a real problem. I haven't seen the film, but merely slapping an identical looking design onto a character, even if the character is a parody, is not sufficient to extend fair use to that. Especially since there's no reason why the design needs to be that similar to the original.

copyrighting meat canvas

[Anonymous Coward]

does this make Mike Tyson a work of art or a piece of work?

oh now I feel dumb

[Osgeld]

I thought it was the face tattoo from star trek voyager's Chakotay

Re:oh now I feel dumb

[iamhassi]

My mistake, the tattoo's are identical, so warner bros stole the exact same design.

Sue away.

This should be a non-issue

[Anonymous Coward]

According to US copyright law, when you perform a work for hire, such as a painting or a tattoo, the work becomes the property of the person the work is performed for unless otherwise agreed upon.

So the work belonged to Tyson, not the artist at that point (unless they agreed otherwise). And if Tyson gave permission for it to be used, then there is no problem.

Re:This should be a non-issue

[mangu]

According to US copyright law, when you perform a work for hire, such as a painting or a tattoo, the work becomes the property of the person the work is performed for unless otherwise agreed upon.

Tell that to the photographer you hired for your wedding.

Re:This should be a non-issue

[QuasiSteve]

Well that's usually in their contract. Thankfully, not every photographer does this.. hit google to find out where you can find them and whether they're available for shoots.

The question then is whether or not Mr. Tyson signed a similar such contract OR whether the work could fall under the same laws that absurdly make taking photos of statues and other works of art ( http://en.wikipedia.org/wiki/Cloud_Gate ) violations of copyright resting on them from their original artist - enforced only when commercially exploited, but still absurd.

Re:This should be a non-issue

[hedwards]

Mike Tyson apparently doesn't own the rights to the original. It was apparently agreed to that the tattoo artist would own the copyright to the tattoo. Which seems odd to me, but that was apparently what they agreed to.

Whitmill's mistake

[frovingslosh]

Warner Brothers further stated that Mr. Whitmill failed to use any DRM when creating the tattoo, which would not only have protected the tattoo but also effectively served to keep it out of public domain even after the copyright expires, circumventing the intent of copyright law as spelled out in the Constitution.

Re:Whitmill's mistake

[Anonymous Coward]

But he did include DRM. The DRM was putting it on the infamous boxer Mike Tyson.

Culture should not be owned.

[frovingslosh]

Culture should not be owned.

And no reference to convicted rapist Mike Tyson should ever include the term "Culture".

A question

[Vinegar Joe]

Does S. Victor Whitmill have permission from the Maori people to produce tattoos based on their designs?

Re:A question

[Anonymous Coward]

Insightful... those designs are protected in New Zealand at least via the Treaty of Waitangi.

Re:A question

[hedwards]

Why would he need that? By that logic architects would need permission from the Romans whenever they chose to include Roman arches in their buildings. A lot of architects would be liable for infringement around here if that were true.

Re:A question

[BancBoy]

Maori tribal art stems from the 1970s. Ever been to New Zealand? Thought not. It's all crap made up to create an indigenous "art" to parallel the Australian Aborigines.

Sorry if I'm feeding a troll here, but Captain Cook wrote this just a wee bit before the 1970s...

The marks in general are spirals drawn with great nicety and even elegance. One side corresponds with the other. The marks on the body resemble foliage in old chased ornaments, convolutions of filigree work, but in these they have such a luxury of forms that of a hundred which at first appeared exactly the same no two were formed alike on close examination.

Re:A question

[Lord_Jeremy]

My father, who's somewhat of an authority on tribal art (he's a self-employed bodypainter and has published a book about tribal art), had an interesting tidbit for me when I mentioned this story to him. Mike Tyson has said that his tribal tattoo is a warrior's tattoo based on art from the Maori tribes. According to my father's research, the Maori and other tribes in that area of the world do produce such art, although the warrior tattoos are meant to be a form of endurance testing. The warriors of the tribes get their whole faces and most of their bodies tattooed through a painful process that proves their strength and endurance. Only the priests, who are too weak to handle what the warriors do, get small designs on just a part of their face. So yeah, Mike Tyson has a wimp tattoo...

Re:A question

[Hairy1]

This is an interesting question because it brings up a serious problem with how poor the common domain has become. Maori have a culture and cultural artifacts which they own collectively. It is their culture. No single Maori can claim it for themselves, but they together own it. Today virtually all the cultural artifacts of our period are owned by someone else. Try and use the artifacts of your own culture in a new work and just see how fast you will find yourself in court for copyright violation.

Sing a popular song, draw a picture of a Coke can, or copy a tattoo from someone who is famous, and suddenly it's a huge problem. But it is clearly a double standard. They can copy cultural artifacts, but we cannot copy them.

I'm not really standing up for pirates - outright duplication of works for profit - but I do think that there should be a liberal ability for individuals to copy segments in order to create new works.

Depends on what you mean by "works"

[Mathinker]

> have more creative works and greater access to them than at any point in history. The system, flawed as it may be, works.

I'm willing to cede you that if your definition of "works" is that narrow, you might be right. Unfortunately, other people are also interested in things like anonymity, the ability to secretly share information without fear of government intervention, and other freedoms which they think are a bit more important than how many Hollywood blockbuster movies get released every year. "The system" is currently very successful financially, yet not so successful at preventing the implementation of anti-piracy procedures which infringe on these freedoms --- this is because all of the money is on the side of the hyper-enforcement of copyright side.

My apologies if when you wrote "the system" you meant "as it is now without PROTECT IP, COICA, ACTA, 3 strikes, etc.". My point is that copyright law seems continually evolving in one direction, towards more (and more onerous) copyright, and your observation that everything is actually working right should mean that it shouldn't be evolving at all.

Dear Judge,

[sootman]

We are thoroughly in favor of Fair Use rights... as long as it's in our favor. Help a brother out? (Ha! Get it?)

Yours truly,

- Warner Bros. Legal Department

Re:Isn't it Tyson's?

[St.Creed]

The artist and Tyson explicitly arranged a copyright transfer to the tattoo artist, which is why he has a rather strong case at the moment: he can show a contract between him and Tyson giving him the rights to everything that's based on that tattoo. The contract also predates the movie by several years.

Now you can argue about the silliness of copyright on this, but he is an artist and copyright does work this way, even if the canvas is a person. And Warner Brothers is about the last entity in the world that can claim ignorance on copyright issues, so they're probably going to try and get a deal, because if it goes to trial I wouldn't give them much chance. Not when every good defense will also backfire onto your own use of copyright to intimidate people.

All in all: good news. I hope the artist takes them to the cleaners. Perhaps that will teach them something about why abusing copyright is similar to wielding a bioweapon: it tends to backfire.

The "artist" is a jerk

[CheerfulMacFanboy]

"Tribal" artwork is owned by the tribes who used them for millennia - they feel bad enough about Westerners just using those sacred symbols (or some imitation) for a stale fashion statement. But actually trying to claim copyright on something you yourself copied?

Good artists copy, great tattoo artists from rural Missisoupy claim copyright.

Re:The "artist" is a jerk

[swillden]

"Tribal" artwork is owned by the tribes who used them for millennia

By that argument, it's in the public domain, so no one has any claim on it. Which actually makes perfect sense to me!

Re:The "artist" is a jerk

[Mr. Freeman]

""Tribal" artwork is owned by the tribes who used them for millennia"

Even with the ridiculous extensions in copyright law constantly being passed anything owned "for millennia" is in the public domain by now.