Very interesting point.

Could an argument be made that since Disney has never defended this, then they have no right to complain now? (At least trademark is supposed to work that way - you lose it if you don’t actively enforce it).

IANAL but the idea that you lose your trademark if you don't actively enforce it is not true except in rare edge cases. Whether or not this is an edge case is up to the courts.

What edge cases? Yes, you can most your trademark. It isnt so much as I'd you actively enforce it, but rather if you let the term fall into regular use.

Copyright does not work that way, unfortunately.

Trademark != Copyright (the concern here was with Trademark)

> trademark is supposed to work that way - you lose it if you don’t actively enforce it

That’s an oft repeated myth, but it’s not quite true.

From an article by the EFF:

> The circumstances under which a company could actually lose a trademark—such as abandonment and genericide—are quite limited. Genericide […] is very rare […]. Courts also set a very high bar to show abandonment (usually years of total non-use). Importantly, failure to enforce a mark against every potential infringer does not show abandonment.

[1] https://www.eff.org/deeplinks/2013/11/trademark-law-does-not...

IANAL, that said I guess this falls under the "not going to complain about free marketing" category, even if they technically could. From the eyes of the biggest IP holders there is little chance of someone mistaking their creations for the work of someone else, and preserving the roots in pop culture is probably valued much higher than licensing.

Not tattoos, but games look at a similar situation with videos and streaming, most companies welcome the free advertising or encourage it heavily. But there are gaming companies famous for exercising a strong grip on content creation, most prominently japanese companies likes ATLUS [1].

[1]: https://atlus.com/note-persona-5-streaming/

There are multiple tattoos of Disney and Nintendo characters engaging in various sexual activities, which both companies normally seem allergic to.

I think the main issue here is that the defendant is using images of the copied work to self-promote. She's making money because of this image.

She made money already by making the tattoo (unless it was free, which I doubt).

She made that money by selling the image of Miles Davis that she did not have rights to. I suspect she and the client agreed on that image as pre-conditions of the sale.

It depends on the visibility of the tattoo artist or production. Friend went on a TV production for tattoos and the artists had a strict policy they would not use any copyrighted image.

I think it depends on whether or not those tattoo artists are using the work to promote themselves (and if they are famous enough that that tattoo-brand promotion is worth real money). It doesn't make sense to sue someone to recover the price of the tattoo. It absolutely makes sense to sue someone if you can potentially recover the price of the tattoo plus the marketing value to the tattooing business/brand.

I think the main complaint here isn't so much as the tattoo itself, but rather the artist used the tattoo to further her own business.

Not actually relevant, but I was at Disneyland one time and a large man was sitting on a bench at the hub on Main St. He proceeded to remove his shirt to unveil dozens of tattoos of Disney characters on his torso.

It took less than a minute for one of the security people (dressed in an old-timey police uniform, of course) to come over and tell him to put his shirt back on, in a tone and cadence which made it sound like this wasn’t the first time the two of them had had this interaction.

Anyway what I’m saying is, as far as I know he wasn’t bound and gagged and hauled off before a Disney magistrate.

The security's problem was probably with the toplessness, and not with the IP on his skin...

Not sure about tattoo artists, but Disney has been known to pursue cake decorators / bakeries that uses their IP without a license.

What is the standard rate for putting a Disney character on a cake?