Artist Sues Activision, Discovery Channel Over American Chopper

An artist who creates custom designs for – among other things – motorcycles has sued Activision, The Discovery Channel and two other defendants in U.S. District Court in Manhattan.

In the suit filed on May 26th, artist Justin Barnes (left) alleges that he created a number of original designs for motorcycles constructed on The Discovery Channel’s American Chopper series. Barnes claims that TDC in turn licensed the use of his work for a variety of merchandise, including video games, without his authorization. Barnes has copyrighted the works in question, according to his complaint.

Although Barnes accuses Activision, he does not mention a specific game. However, Activision has published two games based on the T.V. series, American Chopper in 2004 and American Chopper 2: Full Throttle in 2005; these would appear to be the games at issue in the case. From the complaint:

Defendant Activision has sold without authorization video games incorporating certain of plaintiff’s copyrighted designs worldwide, nationwide and in the State of New York.

DOCUMENT DUMP: Grab a copy of the lawsuit here

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  1. 0
    JDKJ says:

    Actually, he’d be far from S.O.L. If he filed and received a copyright and he’s suing for that copyright’s infringement, then the fact that he’s the holder of the copyright is prima facie evidence of his right and his right alone to exploit the work. The defendant may have a contract with him which says otherwise, but that’s at best a defense to the claim of copyright infringement and, therefore, one for which the defendant, not the plaintiff, must carry the burden of proof. I wouldn’t call those circumstances one where the plaintiff’s S.O.L. I’d call that a case where the defendant has his work cut out for him.  

  2. 0
    Yuuri says:

    Easily. One could get an impression because of verbal negotiations, but the written contract with the employeer says otherwise. He still may of filed, but if the contract for the paint job and/or work for Orange County Choppers said otherwise, he’s still S.O.L.

    It’s also, unfortunately, common for artists to think they have copyrights to their work, but because they didn’t read the fine print, or just didn’t get it in print at all, they get screwed over. Does it suck? Hell yes.


  3. 0
    JDKJ says:

    How does one end up "under the impression" that they hold a copyright? They either applied to the Library of Congress, paid their filing fee, and received proof of registration or they didn’t. It’s kinda hard to be mistaken about something like that. Besides, if his attorney is filing suit on his behalf for copyright infringement when he in fact doesn’t hold the copyrights, then he needs to quit suing for infringement and start suing his attorney for malpractice.

  4. 0
    Yuuri says:

    I have a feeling we won’t know for sure if he was under the impression he had the copyrights, but didn’t or if he actually does until if/when we could see the contract under which he worked with the Teutuls. I have a feeling that is gonna be the linch pin in this case.

  5. 0
    JDKJ says:

    I don’t think we disagree in any way. I’m saying that the mere fact that he has a copyright (or so he alleges in his complaint) suggests that he wasn’t on work for hire. If he was on work for hire, he wouldn’t have a copyright. Under a work for hire, that right would most likely belong to the employer.

  6. 0
    Monte says:

     Actually, not sure, but i think that kind of gray area would only happen if he did not have a copyright of the designs… however since he does have a copyright on the designs to his name then the opposite becomes true; in that he does retain the right to the designs unless the contract specifically signs them over to the client… he has the legal ownership of the work and thus must actively say he is selling the rights to the another party, otherwise the copyright remains in his name

  7. 0
    JDKJ says:

    What usually makes a "work for hire" a "work for hire" is the fact that the hired worker has no property interest in the work produced. Ain’t too many employers that are gonna hire someone to work for them, pay them for the work done, and then let them retain all their copyright interest in the work produced. If they did that, they’d never be in a position to recoup the money paid to the hired worker because they’d have no right to exploit the work for profit. It just don’t make no sense.  

  8. 0
    Yuuri says:

    While in college learning comp animation, the subject of copyrights got brought up in a couple of classes. It was pointed out that in "work for hire" contracts, it is best to have written in that the artist retains the copyright. Other wise it could be argued in court that the employeer has copyright ownership. And unfortunately, it would generally go to the employeer, not the artist. I don’t have access to his work contract to know for certian. But if it wasn’t spelled out that he got to retain copyrights, then it could be reasonably argued that the Teutuls, or TLC, thought they did have the rights to sell the images for the games.

  9. 0
    JDKJ says:

    And one of the often overlooked benefits of "work for hire" is that the artist gets guaranteed payment for their work. Unlike the artist who may retain rights in their work but who’s profit from that work is contigent on the work itself being profitable – which isn’t at all guaranteed. That’s the gamble: take the bird in the hand or let it go in hopes of getting two or three.   

  10. 0
    JustChris says:

    And it doesn’t sound like he’s signed an NDA or anything of that sort that says he’s turning over all the rights to his work to Discovery Channel.

  11. 0
    Monte says:

    Actually, while that is a common arrangement for a full time job, jobs like the one above commonly go differently…

    It’s very common that the artist will maintain the rights to what they created themselves… the payment they reserve is a payment for the Use of their work… optionally, the client can ask to be given the full rights of the artwork at a higher price; this is essentially what artists wind up agreeing to do when they agree to work for disney or some such… for the company to own the rights to what an artist creates the artist himself must sign away those rights; if he does not sign then he still has the rights to what he creates

    The payment for the use of the artwork is generally a one time specific usage… In this case, TDC likely came to him asking to use his creations on their TV show; which he agreed to… however they did NOT mention using his creations in merchandising or anything like that… As such, the price he gave them for the use of his creations ONLY covered the TV show… if they wanted to use his creations for merchandise, other TV shows, or anything else, they would need to go back to him and pay him for the right to do so. 

    TDC bought permission to use the artwork, not the full unlimited rights to it…

  12. 0
    ZippyDSMlee says:

    Ah Not only doze Iz needz tags but in order to clearfiy what I say reiterate my post in a different manner hoping one will make sense?


    I am a criminal because I purchase media,I am a criminal because I use media, I am a criminal because I chose to own media..We shall remain criminals until Corporate stay’s outside our bedrooms..

  13. 0
    Lokoth says:

    I agree with the other posters here. 


    It would help greatly if you took just one moment and proofread what you were writing.  Not only would you have seen that you drifted off topic and had the opportunity to change it, but you could have placed some proper punctuation where it was needed.  These two steps would have drastically improved the readability of your comments and helped us facilitate a positive conversation with you.

  14. 0
    Wormdundee says:

    Yeah seriously, the majority of your posts are so vague and floaty, I usually don’t know what you’re talking about until you respond with a clarifying post.

    If you had simply posted this first instead of a vaguely related rant about consumer rights on product purchases we could have avoided all of this. 

  15. 0
    ZippyDSMlee says:

    Missing point much?…..
    My point is the system is broken because greedy bastards want it one way with no real oversight or work on the profit chain(whos entitled to what, of which this article is about)….at least try and read into what I am saying……


    I am a criminal because I purchase media,I am a criminal because I use media, I am a criminal because I chose to own media..We shall remain criminals until Corporate stay’s outside our bedrooms..

  16. 0
    lumi says:

    Pretty sure TDC is being sued because AC is their show; that’s who he made the original work for, and they’re the ones who signed a contract with Activision to use his work (allegedly without his permission) in the games.

  17. 0
    Yuuri says:

    It may be a case of because he did the work while working for another company, the company and not him has the copyrights to it. An example of this is that for artists while working for Disney, anything they create (even if at home and not on work hours) belongs to Disney. It’s because of that is why Tim Burton’s Nightmare Before Christmas was distributed by Disney. Tim Burton created the characters while he worked for Disney.

  18. 0
    JohnMidnight says:

    Yes, yes. Brilliant idea, but theirs always gotta be someone saying this 😛


    Anyway… I’m holding out, he doesn’t specify the game, either he doesn’t know the game, or hes hoping that the court will overlook the fact that the original designs in the games under scrutiny aren’t close enough to considered copyright breakage.


    oooooooooooooooor theirs a deal that went on and got ended, and hes sueing activision because it didn’t sell enough.


    WHY hes sueing Discovery Channel though is most… confusing. I guess I’ll go in and read that law document and hope my eyes don’t glaze over.

  19. 0
    DarkSaber says:

    Zippy, he’s sueing over things he’s created not things he’s bought. At least try and keep it VAGUELY on topic?


    I LIKE the fence. I get 2 groups to laugh at then.

  20. 0
    ZippyDSMlee says:

    This is what happens when you have a top heavy system that nitpick what consumers do with the stuff they buy but never the chain of licensed stuff is bothered to be doubled checked and made damn well sure things are on the up and up, there should be a matching government fine when business do this it would force them to be less furtive with patents and copy rights.


    I am a criminal because I purchase media,I am a criminal because I use media, I am a criminal because I chose to own media..We shall remain criminals until Corporate stay’s outside our bedrooms..

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