The only fact I brought fourth was that a tattoo can be copyrighted and that the plausibility is given. (And I gave examples to illustrate). Nothing else. Maybe I got lost somewhere along the line as people where bringing in 3D scanners....

And of course a judge has to decide if this is fair use. If this means no violation or a violation that has to be tolerated can be argued (but this is only of academic interest).

And plausibility (at least here) means more than that it cannot be dismissed out of hand. (Depending on what you mean by that, of course.) But plausibility includes actually checking up on the claim in the way that "what the claimant says is the truth".

Would it be considered fair use if his tattoo depicted Super Mario or Micky Mouse? Not likely. I'm with the artist on this one.

OK, this is just wrong.

How the copy is made is utterly utterly irrelevant. They could have broken into his tattoo parlour and traced the design from his book, it doesn't make any difference to the copyright status of the work.

It is not a recreation, it is a transformation. I cannot see a serious argument that a 3d human model and/or a video game are not transformative from a tattoo.

There is one legal issue here: Is this fair use? For the law and the definition of the 4 factor test, check out Title 17 of the US Code, and for case history check out Folsom v. Marsh and Blanch v. Koom to start with.

Sorry, but even assuming everything in the claim goes completely unchallenged it fails, because the claim acknowledges that the replica is part of the model and the game and therefore transformative. The art is of a highly public and visible nature, and it is a prominent identifying feature of Costin. None of this is in dispute. The only factor that doesn't go against the artist even taking everything in his claim as gospel is the effect upon work's value - the least heavily weighted and hardest to prove.
Would he have the right to Mickey Mouse? No. Would he have the right to use a version image as part of an accurate depiction of himself in an artistic form? Yes. Otherwise anyone who got a tattoo could not be represented in any form of art.

That is exactly where you are differing from the claimant. (I guess, I only have the article to go by).

It is the design that counts, not the tattoo. If they use the design depicted on the tattoo and started selling it as posters, it would still be a copyright violation.
You do know that you are contradicting yourself, right? Fair use is only relevant if a copyright violation is present. Which you say isn't. Without copyright violation, no need for fair use.

Anyway, I'm done discussing this (now for the second time).

Sure, they could:

1. Wear clothes,
2. Obtain a license to create derivative works, or
3. Wait for the copyright to expire*


*The copyright term being fucking insane in the US is another matter in itself.

This actually is the best I could find on short notice on the issue. The last paragraph is especially interesting. (Even I didn't knew it went so far)

http://www.prweb.com/releases/2012/11/prweb10144896.htm

See, now there you are very likely correct. But the reason it would probably not be fair use is that it doesn't pass the 4 factors.

It is almost completley untransformative, simply moving the design to paper from skin. His art makes up the entire creative aspect of the new work, rather than a tiny fraction of it. And a claim that he could sell posters based on his art is a helluva lot stronger than money lost based on tattoo themed video game sales.

See? That right there is the point of fair use! It doesn't allow you to simply take others work as your own, but does allow it to make contributions to genuine new works.

What about the designer who made the clothes?

See points 2 and 3.

Clothing and the like aren't subject to copyright in the US. That's why you can get knockoffs of Gucci handbags, watches, and designer clothes. They're completely legal as long as they don't copy any of the logos. (Though that would be a trademark violation, not a copyright one.)

See, given the length of time copyright lasts, point 3 is not really applicable.

About point 2... If I make a documentary about some interesting person, do I then have to track down and contact the designer of each and every article of clothing the documentary shows him wearing, and obtain their permission to use the footage? Can we please agree that this is insane? If this was the case, movies and television wouldn't exist.

Nope. Transformative work again. A documentary is not a t-shirt. In fact, even if the documentary was about the design of the t-shirt you would still be good.

It's common sense that when you apply your art to another person's body you're forfeiting some of your rights to that art. Not the right to produce that same artwork again in future, or even the right to stop other tattoo artists producing direct copies, but certainly the rights to that particular piece on that person.

But then common sense and law... it's like pin the tail on the donkey really.

This is actually changing in many industries, it used to be extremely rare to own the copyrights on your own wedding photos without negotiating it and paying extra, if the copyright was even for sale then. These days that is a completely reasonable request and many photographers have that as their default method of doing business. In the US, names and likenesses must be trademarked if you want protection on them. Typically only celebrities and sports stars do this (and a few political figures, it was considered a bit douchey when Palin did it).

Nor is a computer game a tattoo.