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Tattoo Copyright Lawsuit Could Test Fair Use in an Unusual Context

If you’ve ever played the fighting video game UFC Undisputed, then you may have personally “controlled” the alleged copyright violation that is the subject of this post.

Chris Escobedo, a tattoo artist based in Tempe, yeezy boost adidas Arizona, has sued video game studio THQ for copyright infringement in connection with a lion that Escobedo tattooed on the side of UFC fighter Carlos Condit back in 2009.

“People often believe that they own the images that are tattooed on them by tattoo artists,” said Maria Crimi Speth, the attorney representing Escobedo, said in the press release announcing the lawsuit. “In reality, the owner of the tattoo artwork is the creator of the work, unless there is a written assignment of the copyright in the tattoo art.”

Speth added that there was no such written agreement between Escobedo and Condit, and as such, Escobedo remains the owner of the copyright for the lion image.

Speth’s observations about tattoo copyrights absent a “work for hire” arrangement are factually accurate, but I think I could make out the words “fair use” written on an unmentioned elephant standing next to her at the podium.

As attorney Marc Randazza noted in a brief analysis of the situation:

I see very little room to argue that THQ’s use is not fair use. THQ has the right to use Condit’s likeness. That likeness happens to have been augmented with someone else’s copyrighted work. The copyright owner can no sooner prohibit this use than he can prohibit me from using it demonstratively as I have in this piece…. THQ can’t accurately depict Condit without the tattoo. THQ can not be prohibited from depicting Condit accurately, just because the artist wants more money.http://www.yeezyboostadidas.fr

THQ, meanwhile, announced several months ago (five months prior to the Escobedo lawsuit being filed) that it has agreed to transfer its worldwide license to create UFC video games over to Electronic Arts Inc.