The Tattoo Copyright Controversy
When I first came out of the closet as a lawyer to the tattoo community, I was filled with apprehension.
Would I be called a poser?
But, in fact, I was mostly welcomed with open arms — not so much for being a cultural subversive but for my ability to provide free legal advice. When someone was discriminated against at work because of their body mods, they called me. If a tattoo apprentice opened shop right across the street from her mentor, the mentor called me. A piercer needed a new customer release form, and I got an email.
So it was kind of a shock to me that I met so much resistance to the idea of copyrighting tattoos. It’s a simple idea:
Now, according to law, copyright subsists from the time the work is created in fixed form. No filing required. However, US law does require that the work be registered if US citizens are going to sue for statutory damages because somebody ripped them off. And if they’re going to sue, they had better get a lawyer.
People cried, “Lawyers treading upon the body modification community! Heaven forfend!”
This was a challenge. I pursued this copyrighting tattoos idea with the passion of Erin Brockovich and internal angst of Ally McBeal.
I decided to first canvas tattoo artists to see how they felt about the topic. I started at the breakfast table. As I poured the coffee for my partner and tattooist Dan, I asked, “Honey, how do you feel about copyrighting tattoos?”
He took a sip of his coffee and said, “Don’t get me involved in the mess you’re stirring up.” Sip. “I will tell you that you are gonna piss a lot of people off. Tattooists don’t like lawyers. Pass the milk.”
This couldn’t be true.
I emailed Santa Barbara tattooist Pat Fish, a well-respected (and outspoken) Celtic artist who has been active in the tattoo community for two decades. I asked her how she felt about tattoo artists registering their work with the Copyright Office and possibly suing others for infringement. Was it a necessary protection or an intrusion of lawyers into the tattoo community? Ms. Fish wrote back:
I looked up the word harpy: a predatory person; a shrewish woman. Was I now a shrew? I just wanted to help. To fight those unscrupulous tattooers who appropriate the designs of others for a quick buck. Or advertisers who use images of tattoos without permission in order to sell their products. Then again, the road to hell is paved with good intentions.
The intent of the US Constitution’s Copyright Clause (Article I, Section 8) is “To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.” The basic philosophy behind this is that people will invest more time, energy, and even money in developing new and original works if they can profit from them or at least not worrying about their work being used for a purpose antithetical to their ideas.
But what is an original work? In The Mouse that Ate the Public Domain, an article on the scope and duration of copyright, the author Chris Sprigman notes that “the true mother of invention in the arts is not necessity, but theft.” He cites Leonard Bernstein’s reworking of Romeo & Juliet in West Side Story, and how Shakespeare himself took the play from Arthur Brooke’s poem Romeus & Juliet. Blatant infringement. Sprigman also points out the irony that Disney lobbied Congress to extend copyright protection from fifty years to seventy years beyond the life of the creator and yet has based many of its animations on 19th century public domain works such as Cinderella and Pinocchio.
Pat Fish also raised the originality issue for the tattoo community:
That’s an important point. Human beings are not two dimensional canvases. Our bodies are various shapes and sizes. Ink takes to skin differently. I figured that this argument would blow a hole through the whole idea of copyrighting tattoos. But to be sure, I contacted an expert in copyright law, Mark Radcliffe, partner in the law firm of Gray Cary, who specializes in intellectual property protection.
I first asked him the basic question: is an original tattoo design inked into the skin a copyrightable work? He said, “Yes, all ‘original’ works of authorship are copyrightable: the design was probably originally created as a drawing, so the actual tattoo is a ‘reproduction’ of the original work. It is covered by the general provision of the copyright law.” He then added that, in suing for infringement of copyright, the tattoo must be substantially similar, not exact. Thus, a custom tattoo on an 18-year old supermodel copied onto a 300-pound couch potato would be in violation of the original work’s copyright protection.
With the similarity issue dealt with, Radcliffe also cleared up the originality question for me. In his online primer on copyright law, he explains that the originality requirement is not stringent and that a work can be original without being unique. It can also incorporate preexisting material. He offers this example:
In the context of tattoos, this means that an artist can take, say, traditional Polynesian motifs, arrange them in a certain way, reinterpret or embellish the designs, and come up with an original copyrightable tattoo.
Courts have addressed this originality question as well. In Gonzales v. Kid Zone, Ltd. and Transfer Technologies, Inc. (2001), David Gonzales, a California artist, sued Kid Zone, Ltd. and Transfer Technologies, Inc., for stealing his copyright protected artwork in the creation and sale of stick-on (transfer) tattoos. The defendants argued that the themes used for the tattoos were eagles, the Virgin Mary, and national flags. How could these concepts belong to a single person? The Northern District Court of Illinois said that copyright protects specific expression of concepts and ideas, even common ones. The court concluded “that even though the images are not exact copies, Transfer’s tattoos do not just share the ideas Gonzales wished to convey; they appropriate his expression. For example, even though the American flag must have thirteen red and white stripes and fifty stars on a blue background to be recognizable, it need not lay in three furls at a particular angle in the proportions that it does in the Mexican American graphic [of Gonzales] and the corresponding Transfer tattoo.”
Gonzales did not get rich in this case. He received statutory damages for $3,000, that is, $750 per his four designs that the defendants ripped off. But he also sent the message out: Steal from me and you will pay.
That was a commercial case that involved stick-on tattoos. I asked Radcliffe how an actual tattooist would calculate damages if she sued another tattooist for copying her custom design and inking it on a client. First, he said that if the copyright was registered either prior to or within three months of the infringement, statutory damages up to $100K could be awarded if the infringement was willful. The normal range of damages is $750 to $30,000. Definitely an incentive to spend $30 on the registration fee. A non-US copyright owner doesn’t need to register with the US Copyright Office to file a lawsuit.
But what if someone comes into a tattoo shop having traced a custom design from a magazine and the tattooist had no idea that it was the work of another artist? The US courts have said that if an infringer did not know and had no reason to suspect that he or she was infringing another copyright then damages could be as low as $200 for each act of infringement. Thus, stupidity and ignorance is not a defense. Even if the infringing tattooer did not charge a cent, by law, she has to pay up.
Still, I don’t foresee this being a big issue because the $200 award would not even be enough to cover attorneys fees.
If the US tattooist who created the original design did not register the work, they can still seek actual damages and any additional profits from the infringer but that might be tougher to prove because a reasonable relationship between the creator’s lost profits and the act of infringement would have to be proven. Not an easy task.
So far, I’ve been talking about tattooists suing other tattooists for stealing their designs. But keep in mind that any copyright holder can sue a tattooist — the copyright holder is the creator of the work, so it can be a corporation, a tattoo owner or wearer, artist or the tattooist and client together.
Radcliffe also said that a case could be made against the tattoo owner or wearer of the copied work for public display. So if you’re wearing someone else’s backpiece, keep your shirt on.
Further, he said, “The owner of the tattoo store could probably also be sued under the theory of vicarious infringement, just like the owner of a nightclub can be liable if a band plays music without a public performance license.” Everybody gets in on the action!
I’m sure this isn’t happy news for tattoo shop owners who have enough problems fighting unfair government legislation, strict zoning regulations, and competition from scratchers who charge half the price of a reputable shop. Now they have to worry about unimaginative employees and clients getting the shop hauled into court. Alternatively, I could argue that this would raise the bar of creativity for tattooers but I would probably get my ass kicked.
Pat Fish rightly told me that if I didn’t want to be a Harpy, I should do something good for the tattoo community like create a client release form that will hold up in court. I’m working on it and one provision I would want to include reads something like “I have not provided the tattooist with copyright protected work. If so, I agree to indemnify [the tattoo shop] for any damages and legal costs arising out of an infringement law suit.”
It could work.
TATTOO REMOVAL REMEDY
Monetary damages aside, the court could order injunctive relief. Here’s the real kicker. Are you ready? A court could order tattoo removal for infringing copyright. Radcliffe doubts that a court would — but it could do so theoretically. There are privacy and First Amendment speech arguments that can be made to counter this, however, these arguments don’t hold up easily.
“Sounds dangerously like State control over our bodies,” said Martin William McPherson, a professional piercer for over a decade working at Miller Cotton’s Tattoos and Body Piercing in Worcester, MA. “Isn’t that what many of us are fighting against? Aren’t we (some of us) trying to claim our bodies as our own?”
But keep in mind that this is not your average idiot local resolution banning tattoo shops. Here a court can’t order squat unless someone brings suit. Again, it is not likely a court would even grant this type of relief. More likely, it will grant an injunction against future infringement.
Mr. McPerson suggested that instead of having to deal with lawyers, the body mod community should continue to be self-regulating. He said,
After coming to all these conclusions about everyone being able to sue everyone and the possibility of people going under the laser because of their lack of imagination, I figured Martin, Dan, and Pat were right. This copyright idea would stir up too much trouble and I would be forever hated in the body mod community. So — simply for affirmation — I spoke to someone in the community who I knew didn’t hate me, Keith Alexander, who opened the very first body piercing studio in Brooklyn, New York and has been voted “Best Piercer” by the Village Voice and Time Out NY. He liked the idea of suing people. He also liked the idea of kicking ass for theft as well. Most importantly, he pointed me in the direction of Elayne Angel.
Elayne Angel is a Master Piercer and owner of Rings of Desire body piercing specialty studio. She is the Medical Liaison of the Association of Professional Piercers and is personally credited with inventing, naming, and popularizing a number of specific piercing techniques and placements, such as fourchette and lorum among others. Ms. Angel is also know for her own body art work, especially her internationally recognized black and grey angel wings tattooed by Bob Roberts, at Spotlight Tattoo in Los Angeles, in 1987. This tattoo is the first and to date, only tattoo issued a registration by the US Patent and Trademark Office. She even has the encircled “R” for registered marks tattooed near the wings.
Wait a minute. The tattoo was registered with the US government and issued on November 5, 2002. That was over a year ago — and chaos has not ensued in the tattoo community. What was going on? I had to speak with her:
I was inspired. A well respected body modification professional using the “system” to further her work. And when she had a problem, she made some calls to solve it but not to her lawyer to drag anyone into court. Still, her lawyer was the brains behind the service mark idea, so I decided to speak to him.
Ms. Angel’s lawyer, Peter K. Trzyna, a sole practitioner in Chicago is not a Harpy. He’s actually a really nice guy who undertook the service mark registration for Elayne personally — a process which took six years — because he said that he admires her for cutting her own path in life and that she alone made herself the best at it. And he did it for free.
I asked Mr. Trzyna about the process and what it was like getting the first trademark or service mark on the human body. While he thought about the idea of copyrighting Elayne Angel’s tattoo he decided to register it with the US Trademark Office to better protect her business. For example, he said “if one used a photograph of Elayne’s tattoo in connection with, say, a web site on piercing books, this might suggest that the web site was in some way connected or associated with Elayne so as to cause confusion, mistake, or deceit.”
I wondered how government officials took to the tattoo idea but Mr. Trzyna said that the Examiner was competent and thorough and did great research on this case, including extensive Internet and literature searches. Usually, the US Patent and Trademark Office takes about eight months to review a trademark or service mark application. The Office first rejected Ms. Angel’s application for the reason of ornamentation — failure to function as a mark. Mr. Tryzna explained, “A first issue was that a mark must indicate the source of goods and services, so mere ornamentation (fine for copyright) is insufficient for registration. I established that Elayne’s tattoo functioned in the relevant market to designate that certain services originate from her. Nothing in the statutes mentions use of a mark soley on a body, but I mentioned that ‘brand name’ comes from ‘brand’ which was used as a mark on cattle (a life form).” He also filed evidence that Ms. Angel is internationally famous for her tattoo in association with her services. Several months after his response, the registration was allowed. A precedent set in US law.
What about getting a tattoo of a trademark, say, the Nike Swoosh symbol? “Probably trademark infringement from a corporate tattoo would be a rare situation,” he said. “One who has Goodyear tattooed on their body would not likely be thought to be associated with the tire company.” So, for example, wearing a fake “Rolex” bought on a New York street corner is ok but selling the watch would be infringement.
Peter Trzyna may one day take on a case filing for copyright registration of tattoos although he does not believe he will be the first and that someone may have beat him to it already. My own search did not find any human body part as the subject of copyright registration but I’ll keep digging.
BODY ART AS A PROFESSION
The Association of Professional Piercers supported the service mark registration of Elayne Angel’s tattoo. In Issue #27 of their newsletter it said:
As a profession, one that is willing to use the tools of mainstream society while living on its fringe, the body modifcation community can even use the law to fight those who wish to turn it against us. Advertisements using negative stereotypes and featuring photos of real tattoos will have executives thinking twice about running the images for fear of being sued.
And how much longer will South Carolina and Oklahoma continue to ban tattooing if the US federal government is willing to give it legal intellectual property protection?
Jerry Neeckx, creator of the Belgian site, Bodymodification.be foresees a darker future:
In this scenario, perhaps copyright could help tattooists passionate about their art rather than the McTattoo corporation. Which one do you think would be more likely to rip off another artist’s work? Sitting with a client to create a custom work of art especially designed for that person’s body takes a lot of time and does not help profits. Copyright attorneys could be used as part of fending off mega-corporations away from the industry.
My favorite lawyer quote is from Shakespeare’s Henry VI : “First thing we do, let’s kill all the lawyers.” It was uttered by a member of Cade’s rebellion as a way to succeed in taking power and suppress individual rights. It credits lawyers as people who defend freedom and liberty. Unfortunately, a great deal of lawyers do the opposite — yet there are some who believe in the oaths they took to uphold the US Constitution. You can use these people to defend your rights to own work. Or you cannot. It’s an option. It’s an idea. I’m just the messenger.
In addition to the people mentioned in this article, I would like to especially thank Rebekah for her invaluable help in case law research, Jen and Jenni for their extensive, thoughtful comments and general kindness, as well as the many other wonderful people of BME who raised important issues in the forums that helped shape this piece. I would also like to thank Dan for his love, patience, and my pretty tattoos. – Marisa Kakoulas