Macado's is sandwiched between its marketing methods and a copyright infringement lawsuit.
Roger LaDouceur is a tattoo artist and owner of Star City Tattoos in Roanoke, Virginia. On Oct. 30, 2015, LaDouceur filed a copyright infringement lawsuit against Macado's, Inc. According to LaDouceur, the restaurant has been using his artwork for marketing purposes. He has received no proper credit or compensation.
In October of 2013, LaDouceur created a tattoo for his client, Chris Giles. The tattoo is an altered display of Frankenstein with the caption, "I Am Not A Monster." LaDouceur crafted the tattoo for Giles' leg.
In 2014, LaDouceur discovered that Macado's was using his artwork to market their Halloween season. He found a replica of the Frankenstein tattoo on cups, T-shirts, menus, advertisements and more. Merchandise grew exceedingly popular and was even being sold on eBay.
"It was a very commercially successful campaign using Roger's image," said James Creekmore, attorney at The Creekmore Law Firm PC and LaDouceur’s lawyer. "Even to a point where people are reselling these things on eBay now."
According to Creekmore, LaDouceur put Macado's on notice that its use of his artwork was not lawful. Yet, use of merchandise displaying the image continued throughout the 2015 Halloween season. Macado's staff was also wearing t-shirts that showed the image.
After LaDouceur had seen enough, he and Creekmore began gathering information for the case.
"We looked online to see what we could find," Creekmore said. "Social media is a wonderful thing as far as a litigation tool because we found numerous images posted either by Macado's or Macado's customers. We found customers raving about how great the image was and how great the Halloween 2014 merchandise was."
A complaint, dated Oct. 30, 2015, was filed at the United States District Court for the Western District of Virginia. The document calls for one count of copyright infringement.
"Plaintiff, Roger Charles LaDouceur, is the artist and creator, and sole and exclusive author, of the original tattoo design created on October 16, 2013," the complaint stated. "Plaintiff has not licensed or otherwise authorized Defendants to reproduce, display, distribute or make any use of the Tattoo."
LaDouceur seeks destruction of remaining items displaying his artwork, an award of damages and an award of profits. Profits can range from October 2014 to the present.
"The artist is entitled to see his actual damages and the actual profits that the infringing party received as a result of using the image," Creekmore said. "Those profits can be everything from all of October 2014's profits across all of their restaurants because Macado's used that image to sell their entire Halloween season in 2014."
Creekmore emphasizes that intellectual property law is important for people everywhere. Rewards should go to artists when their work is used for commercial purposes.
"The theory behind intellectual property law is that when a person creates something, that person is entitled to all of the recoveries that were available from the commercial use of whatever the intellectual property was," Creekmore said. "It's set up to be a big penalty and a big deterrent to theft of intellectual property."
Macado's is unable to comment until the lawsuit progresses. However, Dean Nichols, registered agent for Macado's, states that there is an incorrect piece of information in the allegation.
"(Macado's) only used the image, and not the exact image that the plaintiff tattooed on somebody's leg, in 2014," Nichols said. "They did not use it in 2015."
Nichols added that the company will review the lawsuit and seek an attorney that specializes in intellectual property.
Until the case progresses, Creekmore warns that the Internet should be used with caution.
"People forget that just because (something) is available on the internet, doesn't mean that it's available for your commercial use," Creekmore said. "It belongs to somebody."