The Copyright Issue

Hi everyone!

This was not going to be my next post, but then events happened and here we are!

For those of you who do not know (I do not blame or judge you, I promise), tattoo artist Kat Von D is being sued by a photographer after she tattooed his photograph of Miles Davis onto a friend’s arm (for free!) and posted photos of it to Instagram in 2017 (Wild to think that is 5 years ago now, wilder that the photographer waited till 2021 to bring up copyright issues with it, and wildest that he was permitted to do so at all). This is now a further issue, because a judge has now permitted the case to go to trial instead of doing what they should have done the minute it came to their attention and toss out the case.

If this photographer were to win it would have crazy, impossibly difficult to deal with, manage, and exist easily within, consequences not only for creatives but for people as a whole. Literally, there is no way a judgement in this photographer’s favor would be allowed to stand, as if they do somehow get a jury to side with them in this suit it would be 1000000000000% in the best interest of Kat Von D (and literally everyone else) to push for an appeal which would be likely granted by anyone else who is in any way, shape, or form better informed on the matter.

If this photographer won, not only would this prevent tattoo artists everywhere from being able to tattoo ANY copyrighted content onto a person’s body but it would also put any person who currently has (or would potentially get a copyrighted tattoo before the verdict is reached) into an incredibly precarious position where they likely would NOT be able to show off their tattoo in public unless they have specifically organized a deal with the copyright holder (Imagine having to arrange a deal with Disney to show off your Star Wars tattoo in public, like it would be so incredibly terrible), and would also just make copyright laws stricter than they currently are in the worst way possible.

So we are all on the same page here:

“The Copyright Law of the United States grants monopoly protection for ‘original works of authorship’ With the stated purpose to promote art and culture, copyright law assigns a set of exclusive rights to authors: to make and sell copies of their works, to create derivative works, and to perform or display their works publicly… The United States copyright law protects ‘original works of authorship,’ fixed in a tangible medium including literary, dramatic, musical, artistic, and other intellectual works. This protection is available to both published and unpublished works” but “In no case does copyright protection for an original work of authorship extend to any idea, procedure, process, system, method of operation, concept, principle, or discovery, regardless of the form in which it is described, explained, illustrated, or embodied in such work. For example, a paper describing a political theory is copyrightable. The paper is the expression of the author's ideas about the political theory. The theory itself is just an idea, and is not copyrightable. Another author is free to describe the same theory in their own words without infringing on the original author's copyright” unfortunately though “Reasonable people can disagree about where the unprotectable ‘idea’ ends and the protectable ‘expression’ begins. As Judge Learned Hand put it, ‘Obviously, no principle can be stated as to when an imitator has gone beyond copying the 'idea,' and has borrowed its 'expression.' Decisions must therefore inevitably be ad hoc.’”

This is taken directly from the Wikipedia page for “Copyright law of the United States” at: https://en.wikipedia.org/wiki/Copyright_law_of_the_United_States (I don’t want to hear anything about using Wikipedia as a source, it is a perfectly acceptable source, especially in this instance)

What this essentially boils down to is that creators only own how exactly they did something not the idea behind it and therefore it is their exact expression of that idea that is copyrighted but it does not extend beyond that. Unfortunately, since that is subjective each judge gets to make the decision for themselves about if something is the expression or the idea, which is why we are in this mess.

So we are further on the same page here is the original photo in question:

And here is the piece done by Kat Von D:

Both images were acquired from this article about the situation: https://news.artnet.com/art-world/a-photographer-is-suing-tattoo-artist-kat-von-d-after-she-inked-his-portrait-of-miles-davis-on-a-friends-body-2135112

They in turn were able to gain the images from the court filings.

Now, I could actually probably argue with relative ease that the moment she turned this into a tattoo it became original enough in its expression to not be covered under copyright law, though I am not a lawyer. I am though someone who has gotten tattooed and who has watched a number of Tattoo Reality Shows. This is easily enough for me to be aware that if it were somehow possible for a tattoo artist to attempt to do the exact same tattoo, in the exact same place, on the exact same client several times over the course a few days, weeks, months, whatever without it being a Groundhog Day situation (Where you would know exactly how someone is going to react time and time again because they do not have the knowledge of the previous attempts but you do) you would likely end up with at least moderately different pieces each time even if a stencil is used.

This is because even if a tattoo artist attempts to do everything the exact same way, they wouldn’t be able to control the potential different reactions of their client. If you expand this further it would be even more difficult to get the exact same tattoo if you attempted to do the same one again on a different person because people all react differently to different things, and our skin is all different in a lot of ways that can affect how tattoos look once healed.

Yes, some of that is mitigated by how tattoo artists tattoo is trained and operate (Including how they position and still clients, their healing instructions, etc.), and some is mitigated by stencils, but in this exact case Kat Von D apparently did the tattoo freehand (Without a stencil). In the end though, each tattoo artist has their own approach and style that is their “expression” and makes them different from any other tattoo artist which should be enough within the confines of copyright law to not count as copyright.

Additionally, the tattoo doesn’t look exactly like the photo (In fact I have criticisms that I will keep to myself, because for one I could not do better and for another that is permanently marked on someone’s body and I do not want to put these issues out there in a way that could potentially reach that person), so already you could easily look at it and say, “Meh, they are different enough” and call it a day.

If this photographer were to win and set a precedent for this though, it would be limiting what people could consider enough deviation from the original work to not be considered copyright, and that would cause IMMENSE harm to creators everywhere as that deviation protects people and ensures that people can make things that resemble what has already been created (Which is what all creative expression is anyway).

(Also, I do just want to point out again that Kat Von D apparently did this work FOR FREE which should add another check to the “Not Copyright Infringement” category)

This though actually connects to a lot of other and further reaching issues, because the reality is that this photographer is not likely going to come out the winner. Even if he wins once or twice, Kat Von D does have money and any lawyer worth their salt would push to appeal until they reached either the one that was smart enough to give them the win or the highest court it could go who would have to see that this would have extremely far reaching complications and would likely dismiss it (I know we have some real idiots out there already doing their best to restrict rights and such, but if this passed the consequences would likely be widespread enough that literally everyone would eventually be harmed by it in some way, shape, or form and while some do not act in our best interest they do act in their own best interest which this would not be). Essentially, this is another in a long line of more recent frivolous lawsuits I have seen.

See, I do not use the term “frivolous lawsuit” easily, but I have been seeing it more and more especially in terms of copyright. Two easy examples recently would be the lawsuit brought against Taylor Swift for “Shake it Off” and against Ed Sheeran for “Shape of You” in both cases the people who brought the lawsuit forward lost and they really should have, no matter your personal feelings on either artist.

In Taylor’s case the issue was that the other artists also had a song that talked about haters hating and players playing. I kid you not, that is the case. Like it should have been thrown out right away, but the judge allowed it to come to trial. Can you imagine if we were no longer allowed to mention similar concepts in songs that other artists also used? Like, “Oh you want to write a song about love between two people? Sorry, that’s copyright infringement because X artist also wrote a song about love between two people 20 years ago,” that literally would not make any sense at all.

In Ed’s case the artist who sued him had a song where in the chorus there was a similar lyric and similar chord progression. For those of you wondering it is the part of “Shape of You” where Ed sings “Oh-I-oh-I-oh-I-oh-I I'm in love with your body Oh-I-oh-I-oh-I-oh-I I'm in love with your body Oh-I-oh-I-oh-I-oh-I.” For more information it is only the “Oh I”’s that are the issue but without them you wouldn’t have the best context about the part of the song I’m talking about. For comparison, the artist who sued Ed is named Sami Switch and his song is called “Oh Why” which contains lyrics like “Oh why, oh why, oh why, oh Why do I put myself through this? Oh why, oh why, oh why, oh Why do I put myself through this?” and “Oh why, oh why, oh why, oh I hope the suffering's worth it Oh why, oh why, oh why, oh And we suffer for a purpose” but only the “Oh why”’s were the issue. This is even worse than the Taylor one.

Imagine if this was how music worked now, how would that even work? You would literally run out of actually good songs and end up with stuff more chaotic than Avant-garde jazz (No hate, but that is only a limited number of people's cup of tea) as artists try to ensure that the chord progression and words weren’t too similar to any other works, it would be super unpleasant and disorienting.

I literally do not know why a judge let this one go to trial (I will say I believe it was a UK case and I know less about their copyright laws, but honestly, I don’t feel it could be so different as to think this was acceptable), as they could have easily read the lyrics and listened to the songs exactly one (1) time to see that this is not close enough nor does it encompass enough of the song for it to in anyway be a valid copyright claim.

Now, some people hear about these lawsuits and essentially say, “Ah yes well Americas are incredibly litigious they sue over frivolous things all the time” and generally will not care to adjust that statement even if you do point out that the Ed Sheeran case was in the UK, but here is the thing, WE REALLY DIDN’T USED TO BE

You see, corporations shot themselves (and everyone else as a result) in the foot over this issue. Let’s use a really easy and well-known example. In February of 1992, Stella May Liebeck, who would have been 79-years old at the time, ordered a coffee for 49-cents from McDonald’s through the drive thru with her grandson. Since the car did not have cup holders accessible to the passenger seat she was sitting in, her grandson pulled into a parking spot so she could add cream and sugar to the coffee. She held the cup between her legs as she attempted to remove the lid, and in doing so, accidentally spilled the entire cup into her lap. Further compounding the issue, she was wearing cotton pants that absorbed the liquid, thus holding and pressing the incredibly hot liquid against her skin, burning her severely. This is often known now as "McDonald's coffee case" or the "Hot coffee lawsuit" or any other minor variations on the same concept. Most people still mention it when they bring up frivolous lawsuits, when that is literally the issue we are looking at here.

McDonald’s pushed the rhetoric of “frivolous lawsuit” and despite losing the case the propaganda stuck and now they and many others reap the consequences, especially since many other corporations did the exact same thing with other “frivolous lawsuits.”

You can laugh all you want about how someone should know that coffee is hot or whatever, but the reality is that Stella May Liebeck, at 79-years-old, had to be taken to the hospital, and they determined that she had third-degree burns on 6% of her body and lesser burns on another 16% of her body. This is easily accessible knowledge on Wikipedia, here: https://en.wikipedia.org/wiki/Liebeck_v._McDonald%27s_Restaurants

For easy clarification:

“First-degree (superficial) burns: First-degree burns affect only the epidermis, or outer layer of skin. The burn site is red, painful, dry, and with no blisters. Mild

sunburn is an example. Long-term tissue damage is rare and usually consists of an increase or decrease in the skin color.”

“Second-degree (partial thickness) burns: Second-degree burns involve the epidermis and part of the dermis layer of skin. The burn site appears red, blistered, and may be swollen and painful.”

“Third-degree (full thickness) burns: Third-degree burns destroy the epidermis and dermis. Third-degree burns may also damage the underlying bones, muscles, and tendons. The burn site appears white or charred. There is no sensation in the area since the nerve endings are destroyed.”

This information is taken directly from Stanford Health Care here: https://stanfordhealthcare.org/medical-conditions/skin-hair-and-nails/burns/stages.html

and was stated similarly on other sites when searched as well

I am not going to do photos of that because that is not what am trying to do here, but you can feel free. The point is third-degree burns are nasty, and I don’t mean in appearance, I mean in how they effect the people who get them.

Due to how bad this burn was, Stella May Liebeck had to be in the hospital for 8 days and got skin grafts done to help. All of this led to her losing 20 lbs. while there, reducing her weight by almost 20%, and leaving her only weighing 83 lbs. Following this, she then needed care for about 3 weeks which her daughter provided, but it left her permanently disfigured and she was considered partially disabled for 2 years afterwards.

None of that is frivolous to me in the slightest. To make matters worse, she attempted to settle with McDonald’s out of court before hand for $20,000 to cover present and future expenses related to the burns. When they brought this to McDonald’s she had already racked up $10,500 in medical debt alone while future medical needs and her daughter’s loss of income needed to care for her after the fact added to the total they came to. In response, McDonald’s only offered her $800 and refused to go any higher.

To adjust for inflation:

$20,000 in 2022 = in $10,140.41 1994

$10,500 in 2022 = $5,323.71 in 1994

and $800 in 2022 = $405.62 in 1994

$20,000 in 1994 = $39,446.15 in 2022

$10,500 in 1994 = $20,709.23 in 2022

and $800 in 1994 = $1,577.85 in 2022 (Wow, that is so sad ☹ Anyway, I used https://www.usinflationcalculator.com/ to get these numbers)

Due to McDonald’s pitiful offerings and refusal to budge, Stella May Liebeck hired an attorney and they sued McDonald’s. Before they went to trial, they offered other settlement amounts of $90,000 and $300,000 while a mediator also suggested settling for $225,000, but McDonald’s turned down the settlements at every turn.

The trial was held in August of 1994, and in the course of it they managed to find and prove that McDonald’s required their franchises “to hold coffee at 180–190 °F (82–88 °C)… [but coffee at] 190 °F (88 °C)... may produce third-degree burns (where skin grafting is necessary) in about three seconds and 180 °F (82 °C)... may produce such burns in about twelve to fifteen seconds” in addition to finding that other local businesses that sold coffee were doing so at about 20 °F (11 °C) cooler temperatures (Which gave more time to deal with a spill before it caused a third-degree burn) and that while McDonald’s claimed they did so because drive-thru coffee was for commuters who needed it to stay warm over longer distances, it eventually came out that they had conducted studies that determined most people going through the drive thru for coffee expected to drink it right away (Stating the obvious a bit, but we need scientific data to back that kind of stuff up) and McDonald’s had received over 700 burn claims about hot coffee of varying severity in the decade leading up to Liebeck’s burn in 1992 (which is 70 burns a year), resulting in settlements with McDonald’s for more than $500,000.

Despite attempting to argue that all hot food is a burn hazard and that there weren’t enough cases for them to reevaluate their practices, the jury decided that McDonald’s was 80% to blame and Liebeck was only 20% at fault, awarding her a significant amount of money in response that was eventually reduced down to “a total of $640,000.” McDonald’s of course appealed but eventually the matter was settled out of court for an unknown amount.

Now, you really might be thinking, “Well yeah that is terrible but what does this have to do with copyright or frivolous lawsuits, obviously this wasn’t frivolous but other are!” But the issue is that is the rhetoric that was pushed for years, over and over again.

Companies were doing things that hurt people and didn’t care to change (Even when it really wouldn’t have lost them money to do so, like yeah maybe you have to throw away coffee sooner, but really that can be managed in a lot of ways (Especially if you look at sales and get a sense for how much coffee is typically sold each day of the week and at which times), so literally should have been an easy fix) and when someone finally, publicly sued them for it they poured their money into pushing the rhetoric it was a frivolous lawsuit hoping to turn the tides of the results if not in the first verdict then on appeal, but instead they lose and end up paying out a lot of money because they were doing something messed up.

Propaganda doesn’t just disappear though. It sticks around with annoying persistence, but the results are still also public knowledge. So, when the idea of frivolous lawsuits is continually pushed only to result in major payout to the people who sued, you do eventually reach a point where a lot of people truly start to believe that you can sue (and win!) over literally the smallest, dumbest things you can think of.

Like say, a tattoo artist using a photograph you took as the base for a tattoo of a well-known famous person which they gave their friend for free.

Till next till!

-Shadow Finch