Transcribing a photo or painting into a tattoo seems almost necessarily transformative due to the limitations of the medium.
There are severe limitations on how dark black can get, ink fades which has to be factored in.
Even skill-wise, it's a small subset of tattoo artists that are good enough to replicate a face well enough that it isn't transformative by nature of not looking like the reference at all.
They're not going to extort money from your average scratcher who couldn't manage to violate copyright if they tried.
Even moving beyond that, in practical terms I don't understand the economic reasoning here.
Tattooing is a heavily manual process. There is no route to "industrial copyright infringement" like with books or movies where they can be effortlessly shared. Kat was tattooing for hours on that; I would wager it took over 8 hours just to ink that, ignoring prep work.
Combine a heavily manual process with a limited number of artists capable of producing infringing material and I just can't see what the end goal is. To put everybody back on flash for all their tattoos? To get Midjourney to generate reference material and avoid copyright?
> There is no route to "industrial copyright infringement" like with books or movies where they can be effortlessly shared.
Whether something is copyright infringement is not predicated on the scale that it happens at last time I checked (if you make x copies per day you're fine, but if you hit y (>x) you better watch your legal back).
That experiment isn't close to cutting it; I promise you that machine will never infringe on copyright because it's incapable of that detail.
Just look at that line in the Verge article. It's bad. Now imagine what its shading would look like.
I don't doubt we'll get there eventually, but that's not particularly close.
It is remarkably round though, it killed that part.
> Whether something is copyright infringement is not predicated on the scale that it happens at last time I checked (if you make x copies per day you're fine, but if you hit y (>x) you better watch your legal back).
I'm not arguing that scale makes it legal to do, just that scale can make it impractical to execute.
I view this as a feature of copyright. It's goal is to promote the arts and sciences, and I don't think violations of copyright too small to be worth filing lawsuits for are harming the arts or sciences.
Even winning this lawsuit seems like a Pyrrhic victory. What do they gain? The judgement can't be that high, what kind of damages can the photographer show? The photographer certainly has standing to sue, I just don't understand the end goal here.
You make a good point, I don't know why you're downvoted.
I'm on the side of the tattoo artist on this one, but it does seem like a tattoo printer would not be far into the future with our current tech. I'm honestly more surprised this hasn't caught on more.
I think your comment is very reasonable and one that the photographer might agree with. He will collect the fee for this photograph and not ever again a single license for tattoo purposes will be sold by him.
This smells like some greedy lawyer wanting a big flashy case to promote their work ("the lawyer who sued the famous tattoo artist and won.. there goes a happy client with a few extra bucks").
I tend to disagree, though I admit I may be biased, as a photographer. And for the fact that Kat Von D's own legal team has been quite aggressive in pursuing other artists reproducing, sorry, "transforming" her work.
But I don't see anything overly original in this. It'd be like people selling their colored pencil facsimiles of the Mona Lisa. There's talent in the technique, but there's next to no creativity in the artistic expression.
Also, as an aside, the photographer isn't exactly hurting for money either, so I don't think it's simple greed.
> Also, as an aside, the photographer isn't exactly hurting for money either, so I don't think it's simple greed.
This seems contradicted by the article:
> “I support my family by licensing my images. Please respect the rights of all artists,” the photographer’s Instagram bio reads.
> Bloomberg Law reports that Sedlik’s attorneys showed examples of photographs that he has licensed to artists in the past for them to adapt and sell, according to parameters the photographer and other artists negotiate. In one case where a painter adapted the Miles Davis portrait into a more colorful image, Sedlik expects to make up to $85,000.
I do some hobby photography, but nothing worth monetizing so we may not share the same views.
I get what you're saying, but I would honestly say the same thing of the original photograph. Its bog-standard "serious and a little melancholic", with the only really notable part being the subject.
The execution is certainly talented (far better than I could muster), but I've gone for this "look" in a bunch of portraits and I've never seen this photo before this article.
I guess what I'm saying is that if the client asked for a serious portrait of a person, this is basically exactly what my mind thinks of. Serious facial expression, dark vignette, grayscale; the hand is the only part that isn't a cliche at this point.
Photography is kind of a weird space for this, imo, because it captures something that actually existed, almost exactly (minus editing). I.e. what would it look like if someone drew/painted/tattooed Miles Davis doing that gesture without using that photo as a reference? How much prompting would it take for them to replicate this photo? I suspect if you asked an artist for "a brooding Miles Davis making a shhh gesture" you'd get something remarkably close to this.
I'm rambling a bit, but I do think creativity in photography as it relates to copyright is an interesting question. The medium demands that the subject and pose are real, and there's certainly creativity in choosing those, but to what degree does the photographer own "that subject in that pose"?
> And for the fact that Kat Von D's own legal team has been quite aggressive in pursuing other artists reproducing, sorry, "transforming" her work.
I'm not really familiar with Kat Von D, but that's disappointing if true. I tried to search, but the results are flooded with this exact case at the moment and gave up after 3 pages of results.
> It'd be like people selling their colored pencil facsimiles of the Mona Lisa. There's talent in the technique, but there's next to no creativity in the artistic expression.
Greedy lawyers and legitimate cases aren't mutually exclusive. Most litigation that moves the needle often requires a big pay day due to our broken legal system.
Imagine being a photographer, and your most famous image becomes an image that everyone recognizes because “that stage picture that Kat Von D tattooed on X celebrity” seems fair enough that she should pay you for your work. And sure the media might be imperfect. So is transferring a picture to a r-shirt, yet there we recognize the rights of the artist.
It’s funny that if someone was copying her original tattooes the she would obviously be arguing that it was infringement.
I can imagine that, but I see it as a derivative work so it'd be fine with me. I'm not a famous or professional photographer, though.
I would be touched and honored beyond belief that anyone cares about my work enough to have it permanently inscribed on their skin to carry it with them through life and into death. And to have a talented artist doing the inscription would be beyond belief.
I'm not saying the photographer ought to feel that way, that's just my reaction as Joe Schmoe.
There's no harm to the marketability of my art. Frankly, the person getting tattooed probably cares more about it being Miles Davis than it being an exact replica of that photo. If I made a stink, they'd just change the tattoo design enough to be fair use. Make it Miles Davis doing "hear no evil" instead of "speak no evil" or something.
I just don't see this tattoo taking anything away from the photographer, so I don't see a need for Kat Von D to pay.
Moreover, it's fine for Kat Von D, who can afford a legal team and probably charges enough to have them verify that a tattoo doesn't infringe. Your average $75/hr or $100/hr artist doesn't have those options, and will be open to being bombarded with copyright claims of varying quality, including trolls.
> So is transferring a picture to a r-shirt, yet there we recognize the rights of the artist.
This is notably different because it is often a literal digital copy. I have had T shirts made, you can just send them a digital image. I didn't have to transcribe it or put in any effort.
> It’s funny that if someone was copying her original tattooes the she would obviously be arguing that it was infringement.
I don't think this is particularly relevant. Kat Von D can be both a hypocrite and not guilty of copyright infringement. I also think there's a difference between transcribing art between formats and imitating a piece of art in the same format.
Paraphrasing a book is very different than converting it to a play.
If this image results in her making lots of money, then she profited off of it, even if she didn't exactly reproduce it.
Imagine a tattoo artist creating a tattoo, and then another artist makes a bundle by stealing the first artist's design. That's what copyright is there to protect.
Just like she deserves to make money by creating art, so does the photographer. Can't have it both ways.
I don't believe the photographer's case is seeking that, and I believe only Kat Von D is named in the lawsuit. A separate suit would have to be filed against the person carrying around their unlicensed IP.
> But then the state is telling someone what to do with their body.
I don't think that's a problem for 95% of people. Pretty much every state on the planet tells people what to do with their bodies all the time. If you eat/smoke/whatever certain plants that are found in nature, they can lock you in a cage and steal your livelihood. I think it's heinous and wrong, but it is the current status (even though it ought not to be).
In practical terms, this really has nothing to do with the question of how transformative a tattoo is or is not as a derivative work.
The reason this hasn’t been a problem before is simply due to the nature of a tattoo - people typically only see the finished product after it was produced, long separated from the tattoo artist that inked it. Even with celebrities whose images are all over the media, a rights holder isn’t going to go track down Vin Diesel‘s tattoo artist to demand compensation.
There have been high profile tattoo artists, of course, but one assumes they have been aware of their visibility and thus by and large steered clear of exactly what Kat von D just stepped into.
In 2011, the tattoo artist who did Mike Tyson's tattoo suing Warner Bros over The Hangover 2 / Ed Helms. It was settled out of court so no precedent was set, sadly.
Jurors took less than three hours to unanimously decide her tattoo — as well as her planning sketch and four related social media posts — were not “substantially similar” to the copyrighted 1989 portrait of jazz legend Miles Davis at the center of the trial. The eight jurors also found that three other social media posts made to Von D’s personal and business accounts that also referenced the photo qualified as “fair use.”
When I got married (20+ years ago), my dad painted (oil panting on canvas) of our engagement photo that our photographer took, and wanted to display it at our wedding reception. I asked our photographer at the time if it was ok, and he mentioned that his painting was considered "deriavitive work", so that he wasn't violating his copyright. Yea, I get he's not a lawyer, and this is just a single instance, but I hope the outcome for Kat Von D, especially since she didn't get paid for the tattoo comes out the same.
That's not how it works. The copyright holder (the photographer your case) has exclusive rights to produce works that are 'derivative' of the original. So your Dad would likely be in violation of copyright law without permission of the photographer. Now one could argue your Dad's painting was fair use on the grounds that it was 'transformative'. But given case law as I understand it (IANAL), that would be unlikely to hold up on court. That said practically it seems unlikely the photographer would sue given the likely market for your wedding photo...
As far as I understand it, Derivative work is not exactly protected. The default is infringement, you have to prove to a judge that your derivative work is defensible because of some argument or the other (Fair use being one set of them).
> especially since she didn't get paid for the tattoo comes out the same.
If she paid forward every bit of money flowing too her due to social media attention decided by the share of engagement derived from the photo, the artist would be Extremely happy and the case would be over.
These days attention is money, and this already gave her a ton of attention, not it’s giving her even more.
I don't know how common this is nowadays, but I'm pretty sure it used to be fairly common for wedding photographers to retain the copyright to all the photographs they take (even when you are paying them).
Often they would not share the negatives or full resolution images. That way if you decide you want enlargements, more prints, whatever, you have no choice but to buy them from the original photographer.
BTW, in the above scenario it's highly advisable to get whatever pictures you want soon after the event. No telling how good your photographer's backup practices are, or whether the basement where they keep all the negatives will get flooded..
The photographer absolutely owns the rights to these images by default unless waiving them contractually and will win handily when you reproduce them without said rights.
So I looked into this more and again is not universally true.
The modern trend seems to be to follow the US law on this which is what you say but many signatories of the Berne convention in fact haven't changed their copyright law and commisioned works, specifically photographs, automatically belong to the commissioner in many jurisdictions.
Check your local laws.
I'm not going to go into much more but privacy protection laws likely apply here as well so that even if the photographer still owns the copyright they may not be able to make use of it since it contains your likeness,once again check your local laws.
I'm also reasonably sure it would be pretty hotly contested in an actual legal battle who owns the copyright to such works. There is most certianly prior cases regarding unfair license terms being removed or amended in contracts pertaining to copyright and this seems like one of those cases.
I standby my statement that the photographer is being shady and is assuming you won't take them to court over this.
The same applied to the us before and I would absolutely argue what I said is in the spirit of the law.
Also Hackernews has audiences from all over the globe.
Regarding the initial point I made. Even if the commenter didn't own the copyright, they absolutely would have an implicit license to have their father paint a picture of the photograph and wouldn't have needed to see the photographers permission.
Also every legal system looks at international laws to determine how a law is to be interpreted. There's a ton that goes into anything so take it all with a grain of salt but I'd be very very confident that should the photographer even have tried to claim damages or gotten any recourse legally in this instance they wouldn't have any legal footing to stand on.
You often don’t get the copyright to the photographers take of you, even if you are paying them. It depends on the contract you sign. I won’t hire photographers who won’t give me rights to the photos at the end. This has been an issue with a surprising number of them.
portland has a similar issue, [Portlandia](https://en.wikipedia.org/wiki/Portlandia_(statue)), where the city commissioned it, $300+ thousand was paid to the artist, but he maintained the copyright, so no photos of it can be sold.
the statue is a reinterpretation of an existing city seal, but wants to keep its "uniqueness" by not allowing any other reinterpretations of it (nee laurelwood brewing creating a likeness of it (an illustration) for their beer cans).
I hate the idea of having restrictions on photographing things in outdoor public places.
I have been harassed by building security for taking photos from the sidewalk outside my cities tallest skyscraper.
An architect might own the rights to a buildings design, but they don't own the right to the cities skyline. City photography would become impossible if photographers have to acquire a license for every building in their photos.
Copying the dead third party isn't the issue. Copying a specific rendition, as composed by the photographer, is. There are a number of photos of him that have non- or less-restrictive licensing.
I've always wondered how that worked. Like, if I tattooed Bowser playing a double necked guitar while riding a surfboard on a guy, am I not infringing copyright? Especially since I'm accepting payment for use of Nintendo's copyrighted material? How have tattoo artists gotten away with this for so long?
Imagine getting a tattoo of your hero, then them pulling this crap on you. How many people have got tattoos of superheroes, brand names, etc etc. Not even Nintendo would go after someone for a Mario tattoo, and THAT says something.
Imagine looking up to someone as a hero but not requesting permission from their photographer / negotiating rights to reproduce or derived from their work.
even if another tattoo artist does it, it will still be unique. hell, if the same artist does the same tattoo multiple times, each will be unique. it's not even remotely the same as seeing an image in Google image search, and using it for whatever without permission.
This is anathema to the whole industry though. You can't do this and also remain a tattoo artist in good standing with the rest of tattoo-dum. It's akin to a punk band calling the cops on someone in the crowd for singing along.
I realize you're being tongue-in-cheek, but I believe they often give the infringer the option of how to dispose of the infringing work. Laser tattoo remove, or inking over it would be adequate. Presumably this would be at Kat Von D's expense, since the wearer of the ink isn't named in the lawsuit.
Well TIL about that photograph, and the name of the photographer who took it. It's a cool photograph, possibly someting I might want to buy a copy of. The photographer should be thankful for the publicity.
I know you and GP haven't said anything else about this, and I don't want to put words in your mouth by assuming your opinion. So this is not aimed at you specifically, but I'm sure there are plenty of people on the side of the photographer who would agree completely with you. For those people:
Are we seriously holding in mind that publicity isn't worth anything to artists so you should never say that, while also saying that the tattoo artist (whose compensation is only publicity on social media because she did this tat for free) has profited illegally from a copyrighted image and therefore should be sued for damages? I don't see how both of those could possibly be true.
Are we seriously holding in mind that publicity isn't worth anything to artists so you should never say that
no, there is a difference between an artist offering to do something for free (because of the publicity they expect) and directly asking an artist to do something for free because i promise they will get publicity out of it.
the later is an insult, because it is not for me to judge if the publicity is worth anything to them. it might not be.
if an artist is maxing out their capacity with paid work, then additional publicity may not help them. then doing something for free would only lower their income.
Even if they are not maxed out for work, there comes a time when an amateur turning pro has to say "no, I'm no longer available to do free work. Even more than publicity, I need the ability to assert that I have been paid money for my work."
That is an uncomfortable transition for an artist. Poking them with "do it for the publicity" is aggravating and unpleasant.
yup, i feel a similar struggle doing Free Software development. i'd love to just hack and code on projects unpaid, but i can't afford it and the publicity i can get out of it is not enough to attract paid work. at least within FOSS the work we do is for other FOSS users and contributors who all know that, so nobody is brazen enough to make such requests.
Transcribing a photo or painting into a tattoo seems almost necessarily transformative due to the limitations of the medium.
There are severe limitations on how dark black can get, ink fades which has to be factored in.
Even skill-wise, it's a small subset of tattoo artists that are good enough to replicate a face well enough that it isn't transformative by nature of not looking like the reference at all.
They're not going to extort money from your average scratcher who couldn't manage to violate copyright if they tried.
Even moving beyond that, in practical terms I don't understand the economic reasoning here.
Tattooing is a heavily manual process. There is no route to "industrial copyright infringement" like with books or movies where they can be effortlessly shared. Kat was tattooing for hours on that; I would wager it took over 8 hours just to ink that, ignoring prep work.
Combine a heavily manual process with a limited number of artists capable of producing infringing material and I just can't see what the end goal is. To put everybody back on flash for all their tattoos? To get Midjourney to generate reference material and avoid copyright?