Changing the medium on which the art is drawn on does not make it transformative. It becomes transformative if you 'advance knowledge or further the arts through the addition of something new'. Simply drawing on skin instead of on paper does not make it transformative. Otherwise, you can also argue that a work is transformative when instead of copy-pasting on the internet, you rewrite it on paper.
Fair use is a legal argument not a legal right or anything at least in the USA. Which just means if I hire an expensive enough lawyer and your lawyer is shit enough, then changing the medium does make it transformative. Just how the legal system works.
It’s not a copy paste though. You’re for example taking a 2D digital drawing then drawing it by hand on 3d physical space containing curves and contours in an analog fashion. That is a transformation. To even be able to sue someone you not only need to be the copyright owner you also need to have it pantented with the patent office in the country(federally registered) you’re filing the lawsuit in. Beyond that you need to prove you were negatively impacted and there are damages. This is why most of these types of things are just settled on out of court because it’ll just be a big waste of money and time for both parties involved and it may very well just go nowhere. It’s overall a lose-lose situation for both people.
But that is not the definition of transformative. While it's true that the circumstances can change depending on the interpretation of the law, if the interpretation does not make sense under the definition of the law, then that changes nothing. In this case, the only way you can argue that drawing the tattoo of a copyrighted work is transformative, is if the purpose of the action is vastly different. Such purpose could be to showcase a new concept of drawing, to improve the opinion on tattoos or to showcase the importance of tattoos in society. Simply drawing a tattoo on the skin and saying "Hey, check out my cool tats!" does not make it transformative. But if you draw the tattoo using a copyrighted work but make it has illusionary or holographic property, then that is most definitely transformative, assuming the original isn't illusionary or holographic.
Indeed, to bring a case to court in America for example, you need to register your copyright. Copyright, not patent, patents are completely different things. You get copyright by default, but in America, you need to register it for a lawsuit, but this can be done anytime before the lawsuit itself.
I agree it’s not transformative. But I’m not a judge. There is a reason appellate courts exist, the problem being if you don’t have the capital for a prolonged case you’ll never get that far, and even if you are legally in the right, you may not be found to be as such. Worse things have happened in the court system.
It’s very easy to prove something is 3D because nothing 2D truly exists outside of the digital world. 2D can only exist in the digital world, not the real world. Also the human body is not perfectly flat anywhere. Adding in any form of curvature introduces XYZ coordinates for every single point drawn onto the surface of the skin. What a tattoo artist is selling is not the art itself, it is the skill, time, process, and method by which to model a piece of 2D art on a 3D physical surface to which exists in the domain of real world being the human body, not a virtual one in the case of digital 2D art.
Good luck trying to explain that to the judge. A single mathematician will instantly say that it's a philosophical nonsense. If it's flat, it is 2D. Are you trying to say that a picture on the wall is 3D? How about a picture on the label of a food can? Is that 3D too? What about a book written on parchment (sheep skin)? Is that 3D too?
If the tattoo artist is drawing a copyrighted material on someone's body, time, skill, process and method means absolutely nothing. The argument is not that they unskillfully copy-pasted the drawing onto skin, but they are using copyrighted materials.
www.tattoodo.com
Everything is 3D in the real physical world, this is not philosophy, it is fact. The closest you can get to 2D in a 3D world is a sheet of graphene but in the end even that is not 2D as even an atom has depth to it. The only place 2D exists is a digital world where depth can truly be set to zero. Skin is by no means a flat or even a smooth surface, zooming in it is filled with countless bumps, holes, and unevenness. In a 2D digital piece of art you can acheive truly 2d because perfect smoothness exists. This is not the case for the real world. To convert a 2D digital signal to a 3D analog real world signal requires mathematical transformations. A way to model this can be done using electric circuits. You can treat it like a black box circuit where you don’t know what is going on inside but you know for a given input you’ll receive a certain output. The 2D digital signal is the input and the output is the 3D analog signal. The tattoo artist is that black box applying the transformation to that 2D digital signal.Good luck trying to explain that to the judge. A single mathematician will instantly say that it's a philosophical nonsense. If it's flat, it is 2D. Are you trying to say that a picture on the wall is 3D? How about a picture on the label of a food can? Is that 3D too? What about a book written on parchment (sheep skin)? Is that 3D too?
You have already given an argument that is damaging to your own point of view in the very first sentence. If you're the defendant, the verdict will be clear. If you want to defend that it's transformative because it's 3D, find another argument. This will not do. By your own words, you have already proven that this is not transformative.
If the tattoo artist is drawing a copyrighted material on someone's body, time, skill, process and method means absolutely nothing. The argument is not that they unskillfully copy-pasted the drawing onto skin, but they are using copyrighted materials.
Here is what HG.org, a legal assistance website says about the issue.
https://www.hg.org/legal-articles/tattoo-parlor-is-using-my-copyrighted-art-work-what-can-i-do-52443
Here is what tattoodo says:
Tattoo Copyright: What You Need To Know
Your tattoo is finally finished, you've paid your artist and now you're ready to proudly show it to the rest of the world... But wait!
You've gone too deep into philosophical arguments. Are you going to say next that our world is The Matrix? Does that sound rude? Don't get offended. This is what an actual lawyer will say to you if you give this argument in court.| 2D | 3D |
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It really isn’t anything philosophical, it is purely math and the laws of physics. No matter how you draw something in the 3D real world, it remains 3D so long as the depth is not zero. 2D is reserved solely to digital environments in which true planes with zero depth can be achieved. Everything in a physical 3D world has depth to it. If it didn’t when you turn that 2D plane sideways in a 3D world you wouldn’t see it no matter how much you zoom in. This is why there exists a distinction between digital art and physical art.
The skin is a plane, anything drawn in one layer on a plane is 2D, that's the very definition of 2D. Unless you can make the drawing on a plane APPEAR as a 3D item, it is NOT 3D. Whether or not there are holes or ridges, makes no difference for the purpose of determining whether a drawing is 2D or 3D. Try looking at paper under a microscope.
Ai-chan will just leave this here. These are examples about whether or not tattoos are 2D or 3D.
2D 3D View attachment 13521
You can also create 3D art on paper, you know. And therefore, Ai-chan will no longer reply. Your arguments are too philosophical and is too far away from legal arguments. Philosophical arguments are rarely accepted in the court of law, you know.