Th-Inking About The Law: Tattoos Leaving Indelible Marks On Black-Letter Principles & Coloring Our Perspectives

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Tattoos, one of the oldest art forms in the world, are all over the legal news in recent years.  The news runs the gamut from a tattooist suing a movie studio over replication of Mike Tyson’s facial tattoo in The Hangover II to artists looking to gaming companies for compensation for reproduction of tattoos appearing on video game avatars of professional athletes, which even made it into the Wall Street Journal and been the subject of court decisions earlier this year and late last year. Even more recently it has included a Larry Bird’s mural being altered, at his request, to remove tattoos an artist had added for a modernizing flourish. (BTW, speaking of murals, the Chuck Wepner mural I had written about has been painted over). It has also included law enforcement receiving criticism from many directions for “Photo-Shopping” tattoos out of pictures of suspects used in policy photo arrays.  Just recently, Cardi B was sued for using a photo of a tattoo on her album cover. Though the examples above may most resonate with a US domestic audience, the copyright and other legal issues emerging from, and connected to, tattooing are being considered worldwide.   Consequently, it seems like an area worth exploring here.

The flurry of recent interest is somewhat interesting, given that it appears that tattooing has been around for some time, as explained by both Professor Perzanowski and others.  Archaeologists have found 12,000 year old tattooing tools, and a 5,000 year old Iceman found in the Tyrolean Alps was found to have over fifty-five tattoos.  (Other mummies from Egypt, Eurasian, Peru and elsewhere, dating to ages ranging from 2100 BCE to 500 BCE to 900 CE, have all shown evidence of tattooing, from “‘dark, blackish-blue pigment applied with a pricking instrument, perhaps consisting of one or more fish bones set into a wooden handle,’” to “elaborate depictions of animals on the arms and back,” to “ornamental tattoos depicting stylised apes, birds, and reptiles on the forearms, hands, and lower legs,” as Professor Perzanowski noted)  Ancient (and successive) cultures, especially in New Zealand, India and Japan, used tattoos for artistic, religious or social reasons.  In fact, “tattoo-ing” entered into the English language, and re-entered the greater Western consciousness, from the South Pacific with the 1769 entry in Captain Cook’s log concerning “tattowing” occurring among Polynesians.  (I say, re-entered because the “Picts” were pre-Roman inhabitants of what is now Scotland, and got their name from the tattoo-painted bodies, as later de-“pict”ed in the 2011 film The Eagle).  From the South Pacific, tattoos’ popularity spread to the United Kingdom with the appearance there of Omai following Cook’s return in 1774.  In the United States, the first commercial tattoo shop in the United States opened in New York City in 1846, and commercial tattooing moved forward more rapidly after 1891invention in New York of the tattoo machine.

“Once the mark of sailors, convicts, and circus performers, the tattoo has infiltrated mainstream society,” Professor Perzanowski noted.  That is certainly true in the United States, where the percentages of people with tattoos has risen dramatically (both generally and in certain age groups), as has the number of people getting tattoos removed.  The simpler tattoos of the past have given way to more and more elaborate ones, ranging from those essentially fully covering one’s face or body or both to the new Triple Mike to Lonzo Ball’s impressive Civil Rights sleeve.

This is not only big business money-wise, but tattoos are getting the attentions of thinkers and thought leaders:

Tattoos and other forms of body adornment have become the subject of serious inquiry on the part of cultural studies scholars, art historians and art theorists, photojournalists, and others. As these authors demonstrate, body art dates back many millennia and has existed in virtually every human culture. Like other folk artists once shunned by the world of fine arts, body artists take their work quite seriously, and even museums have begun to feature exhibits on tattoo art. When body art cases finally make their way into court, judges too will have to take the claims of body artists seriously because, as Justice Holmes once suggested, judges are not art critics.

[Cotter, Thomas F. & Mirabole, Angela M., Written on the Body: Intellectual Property Rights in Tattoos, Makeup, and Other Body Art, 10 UCLA Entertainment Law Review 98, 101-102 (2003)]

Like the intersection of intellectual property law and criminal that we had already addressed, the intersection of copyright law, constitutional law and art criticism can confuse issues.

Before a tattoo is fully inked, it is usually outlined, and by analogy where should sketch out in a little more detail what we are talking about here.  As the IPKat blog notes, the copyright questions about tattoos arise from two basic scenarios:  “Scenario A: Owner of the body on which the tattoo is affixed is not also the owner of the copyright in the work” and “Scenario B: The tattoo reproduced on someone’s body is an infringing copy of a third-party copyright work.”  Scenario A is the subject of most of this post, though Scenario B can produce interesting questions where another’s work inspires a tattoo rather than the tattoo slavishly copying the original work or where the tattoo on Body 2 is in fact alleged to infringe or appropriate an earlier tattoo, which implicates not only legal issues but the norms seemingly shared by tattoo artists, as commentators here and there have noted.

For instance, tattoos like that featured in The Hangover II raise intellectual property law issues while also drawing in constitutional concepts, as Meredith Hatic has discussed.  In fact, even beyond that, one noted commentator has suggested that according tattoo artists too much control over their creations could actually violate the 13th Amendment of the United States Constitution, which abolished slavery and prohibited the so-called “badges and incidents of slavery.”  As Professor Perzanowski points out (at page 529):

Pictorial, graphic, or sculptural elements incorporated into a useful article are protectable only to the extent they are physically or conceptually separable from the underlying article.  Mike Tyson’s face, as Nimmer rightly noted, serves a primarily utilitarian, biological function.

But applying the standard test for separability, Tyson’s tattoo is easily divorced from his skin as a conceptual matter.  Nimmer insisted, however, that “the only legally cognizable result is to apply the strict requirement of physical separability.”  Otherwise, he claimed the Copyright Act would “set to naught the Thirteenth Amendment’s prohibition of badges of slavery.”

At the root of Nimmer’s startling equation of willing recipients of tattoos with slaves is a concern over certain remedies available to a successful copyright.  As he noted, copyright protection could grant Whitmill control over Tyson’s public displays of the tattoo as well as reproductions of it in photographs or video.  Nimmer worried that the derivative work right could give Whitmill some say over other tattoos Tyson might choose to apply to his face.  And in the unlikely event the tattoo qualifies as a “work of recognized stature under the Visual Artists Rights Act, Tyson could be prevented from destroying or removing it.

Both Professor Perzanowski and Professor Johnson criticize and reject the Nimmer 13th Amendment argument and analogy.  To them, tattoos are not literal badges of slavery if tattooist can limit or direct (through exercise of intellectual property rights) the conduct and compensation of tattooed individuals (though Johnson provides a detailed history of the role of branding and tattooing as part of the slave trade).  For them, notions of first sale, implied license, or co-creation/co-authorship may accord the tattooed person some of the autonomy that Nimmer suggests is lost if the tattooist’s copyright rights are recognized to any extent.  Even those, however, exhibit the somewhat “imperfect fit between copyright doctrine and tattoo industry norms,” as Professor Perzanowski concludes repeated or in paraphrase (at 535 and 590).

But, implied license of some sort seems necessary.  Otherwise, as Kyle Ulscht has noted “the ubiquitous nature of technology and social media could lead virtually every tattooed person to be held to be an infringer.  Control over a visible tattoo could prevent a tattoo bearer from a variety of activities ranging from appearing in advertisements, or movies, to more common activities such as posting photos on Facebook, without a complicated trial or trail of paperwork and accounting.

It would seem that a tattooed person should have an implied license to allow the tattoo to be reproduced in any photo, depiction or representation of the tattooed person himself/herself.  This would allow for Mike Tyson to appear in The Hangover and The Hangover II without creating liability or compensation obligation to the tattooist, but would require a license and compensation to separately apply the tattoo to persons or characters other than Tyson, as occurred in the second move in the series.  Likewise, this would perhaps allow video game makers to contract with an NBA or the NBA Players Association to use replicate player images (including tattoos) but would require agreement with the tattooist if the game included the ability to create composite fictional players on which copyrighted tattoos could be placed:

Tattoo artists recognize that they have little control over the customer’s body….[T]attoo artists expect their clients to publicly display their works, and they acknowledge the prevalence of such exposure in the tattoo industry. The plaintiffs in each of the tattoo lawsuits conceded that their athlete clients had an implied license to publicly display the work in order to pursue a livelihood in acting and sports…  [A]n implied license “permits the use of a copyrighted work in a particular manner,” and the copyright owner must have the intent that the person exercises a particular exclusive right of the copyright owner. …Tattoo artists disfavor uses of their tattoos that are disconnected from the body of the tattoo bearer, which has been demonstrated in the tattoo lawsuits to date and is likely to be the case in the future when third-party companies are reproducing the likeness of a tattoo bearer or the tattoo itself.

[Yolanda King, The Enforcement Challenges for Tattoo Copyrights, 22 J. INTELL. PROP. L. 29  (2014), at 50-51; see also King, The Right-Of-Publicity Challenges For Tattoo Copyrights, 16 NEV. L.J. 441 (2016); The Challenges “Facing” Copyright Protection for Tattoos, 92 Oregon Law Review 129 (2013)]

That seems the right balance, and could avoid issues associated with some countries’ refusal to recognize fair use exceptions to infringement.  See De Fontbrune v. Wofsy et al., (at pages 25-26) (discussing French law and agreement of courts and commentators that fair use not recognized under French law).

Other countries recognize the ability to copyright of tattoos.

For example, India has allowed registration of a tattoo, but it interestingly was registered by the bearer of the tattoo rather than the artist.  At least one commentator has suggested that personal autonomy over one’s body and freedoms promised by Art.19 and Art.21 of the Indian Constitution require the bearer to be considered the tattoo owner under S.17(c) of the Indian Copyright Act, 1957 on work for hire grounds.

Some countries eliminate or further confuse the copyright debates over tattoos by outlawing, or limiting, tattoos, tattooing or tattooists, or the content of tattoos.  This ranges from certain countries banning Nazi tattoos to others barring certain religious content in tattoos, as some have noted.  These bans or limitations are reported to span countries (or smaller political subdivisions like provinces, regions or cities) as far away from one another as Denmark, Australia, Iran, and North Korea.  Conversely, in Italy, tattoos are legal for those at least sixteen years of age, though for those still under the age of majority written parental consent from both parents is required.  Given this hodge-podge of rules, some actually offer tattoo advice as part of travel information packages.  And in some countries, attitudes toward tattoos have changed, as seen in Honduras, where anti-gang legislation limiting tattoos and anti-tattoo social pressures have given way more recently to a broader acceptance of tattoos.

As noted earlier, New Zealand has a history and tradition of tattooing, and therefore does not ban tattoos.  New Zealand also avoids many of the copyright debates because its copyright rules presume that the person commissioning and paying for the work owns the copyright, and an artist seeking to retain such rights would have to expressly contract to reverse the commissioning rule.  This approach may have cultural roots in the importance of individual’s marking in Maori culture.

We should tarry a bit as we consider these question involving New Zealand.  That is because the Maori, the indigenous people of New Zealand, have not quietly accepted that the debate concerning ownership of Mike Tyson’s tattoo is limited to balancing his and his tattooist’s rights.  In fact, “many Maori groups and individuals [] speak out against the use of Maori concepts in non-Maori domains” or deploying those concepts “for purposes that deviate from their original meaning,” as one commentator has noted. There is in fact a long and wide ranging tradition of such conduct—as one another commentator noted, “From the time of British colonial settlement, innumerable taonga (treasures) have been appropriated from the indigenous Māori population of Aotearoa/New Zealand, from cloaks, weapons, carvings and musical instruments to the practices and products of tā moko (Māori tattoo).”  In other words, in addition to the debate between the tattooer and the tattooed, some believe group rights are implicated as well.

This was the case with the Tyson tattoo.  As described in A History of Intellectual Property in 50 Objects, Mike Tyson’s tattoo:

Mike Tyson’s Facial tattoo has been described as one of the most distinctive tattoos in North America.  It has attracted controversy as an example of the cultural appropriation of ta moko, the sacred culturally embedded tattooing practice of the Maori people of Aotearoa/New Zealand.  Tyson’s tattoo is an excellent example of the tensions that emerge over the protection of traditional knowledge, and the difficulty of claiming one truth in an intellectual property world that was born in the Wester philosophical tradition, and is only now beginning to come to terms with its colonial heritage…

From the time of Tyson’s first public appearance with the tattoo, Maori activists and scholars were critical of it as a cultural appropriation of ta moko.  Tyson’s tattoo is monochrome, curvilinear, features two spiral shapes, and was placed around his left eye.  Whitmill [i.e.  The Tattoo artist] has described the “flow” of Maori art as a design influence, and he created it after showing Tyson pictures of Maori moko.  In Maori culture, facial moko is a privilege reserved for respected cultural insiders, and it represents and embodies the wearer’s sacred genealogy and social status.  Appropriating an individual’s moko is profoundly offensive and akin to identity theft.

To prevent cultural appropriation and protect Maori collective cultural property, many have resorted to invoking intellectual property rights, or at least lingo, as that Toon van Meijl has noted.

Despite an awkward, incomplete and in fact contradictory fit of these concepts from a purely intellectual property law perspective, van Meijl concludes that intellectual property law concepts and language will have continued appeal as a way to defend cultural control:

The common denominator of both practices is the division of the world into two radically distinct kinds of people: Mãori and non-Mãori, insiders and outsid-ers…In the first dis­course insiders are represented as those with a Mãori whakapapa and therefore entitled to the use, reproduction, and exploitation of Mãori traditions, customs, and beliefs, while outsiders are excluded from these rights. In the second dis­course, insiders also have genealogical connections with Mãori ancestors; and for that reason they may be considered as blessed with a commitment to uphold Mãori traditions, customs, doctrines, and beliefs, while outsiders lack the guidance of the ancestral guardians and therefore must be considered as desecrating, impure, and inferior. In both cases Mãori self-definition is accomplished in opposition to a potentially or actually threatening Other, which, however, is again constructed in two opposite ways, either as an extractive or …In sum, Mãori people deploy a rhetoric of cultural and intellectual property rights to enclose themselves in boundaries against both the external piracy and the internal pollution of their culture.

[Van Meijl, supra, at 352]

Beyond cultural appropriation, one must consider additional ways in which copyright control may be pushing beyond common sense.  For instance, since tattoos alter people’s bodies, and can nevertheless in many jurisdictions be copied, one must wonder whether such two-dimensional pictorial works on one’s body suggest that three-dimensional works may also be copyrighted.  It doesn’t seem a far cry from a tattoo artist challenge a movie studio over a Tyson-like tattoo to a cosmetic surgeon seeking to control depictions of the rhinoplasty of which he or she is so proud.  But it hardly seems like any of these actors or entertainers should essentially owe, or have their producers pay, ongoing royalties to the physicians that created such new looks.  Maybe courts will see it with the same skepticism, as they have in the case of before and after dental pictures. Or maybe they will not, as one commentator has recognized that “copyrighting medical contributions has even found its way into academic medicine.”  Indeed, as seen in Copenhagen, noses are art in museums and along a waterway that I recently walked there.

In the end, there is something provocative about the question “Who owns your skin?” (or your nose) as well as something intuitive about the answer.  That is especially the case when tattoo artists themselves often cede lots of creative credit and inspiration to the customer, saying “You think it, I ink it.”  Legal commentators, like this one, might adopt the parallel, “Since they inking, I’m thinking” about what it all means.  Or at least try.

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