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Copyright Plaintiff’s Claim Suffers From A Glass Jaw.

Chris Escobedo, the owner of Elite Tattoo, has filed a lawsuit in the U.S. District Court of Arizona for copyright infringement against THQ, Inc., the makers of the hit mixed martial arts (“MMA”) video games UFC Undisputed 2010 and UFC Undisputed 3. (2:12-cv-02470-JAT).

The lawsuit is over the supposedly unauthorized usage of a tattoo Escobedo designed. Specifically, Escobedo owns the copyright to a tattoo present on both the real and virtual version of MMA fighter Carlos Condit.

Escobedo’s argument hinges on the idea that, despite being permanently affixed to a public figure who licensed his image for use in the games, the tattoo’s design still belongs to him, as he created it and never signed away the design rights to Condit. And that by digitally recreating that design without permission, THQ violated Escobedo’s copyright.

It’s an interesting lawsuit, if not an entirely stupid argument. True, copyrighted works are copyrighted works, no matter whether they are painted on canvases or walls or bodies. But unlike the recent Tyson/The Hangover II tattoo debacle, this isn’t the recreation of a tattoo on another individual (in a direct reference to Tyson, who appeared extensively in the first film). This is someone who licensed their image to a gaming company and that image, of necessity, includes the tattoo.

If we were to take Escobedo’s argument to its logical conclusion, anytime a Condit fight is broadcast, or anytime Condit’s photo is taken for a magazine, etc. — Escobedo gets a cut of the profits.

I don’t think copyright is ready to go there yet, even if Escobedo is.

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