The Tattoo Copyright Controversy [Guest Column]



The Tattoo Copyright Controversy

This article is not intended as legal advice. It is intended for only general information purposes. This article does not create any attorney-client relationship.


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?
Would I lose my counter-culture cachet?
Would I still be labelled “The Man” despite my extensive knowledge of Ramones lyrics?

 
About the Author
Marisa Kakoulas is a New York lawyer, writer, and muse of Daniel DiMattia of Calypso Tattoo, living in Liege, Belgium. She works undercover — or just covered up — as a corporate consultant: proof that tattoos and suits are not mutually exclusive. Her book “Tattoo Law”, an overview of US laws affecting the body modification community, is scheduled to hit the shelves in summer of 2004. IAM members can visit Marisa at iam:FREE.

 


What is… Copyright is a form of protection provided to the authors of “original works of authorship,” including literary, dramatic, musical, artistic, and certain other intellectual works. This protection generally gives the owner of copyright the exclusive right to do and to authorize others to do the following:

  • To reproduce the work in copies or phonorecords;
  • To prepare derivative works based upon the work;
  • To distribute copies or phonorecords of the work to the public by sale or other transfer of ownership, or by rental, lease, or lending;
  • To perform the work publicly, in the case of literary, musical, dramatic, and choreographic works, pantomimes, and motion pictures and other audiovisual works;
  • To display the copyrighted work publicly, in the case of literary, musical, dramatic, and choreographic works, pantomimes, and pictorial, graphic, or sculptural works, including the individual images of a motion picture or other audiovisual work; and
  • In the case of sound recordings, to perform the work publicly by means of a digital audio transmission.

It is illegal for anyone to violate any of the rights provided by the copyright law to the owner of copyright. These rights, however, are not unlimited in scope. One major limitation is the doctrine of “fair use.” [U.S. Copyright Office, copyright.gov]

Fair use of a copyrighted work … for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. [U.S. Copyright Office, copyright.gov]

Public Domain: in law, legal availability for public use, free of charge, of materials, processes, devices, skills, and plans that are not protected by copyright or patent, including those on which copyright or patent has lapsed. [The Columbia Encyclopedia, Sixth Edition. 2001.]

Trademark is a word, phrase, symbol or design, or a combination of words, phrases, symbols or designs, that identifies and distinguishes the source of the goods of one party from those of others. [US Patent & Trademark Office, uspto.gov]

Service mark is the same as a trademark, except that it identifies and distinguishes the source of a service rather than a product. [US Patent & Trademark Office, uspto.gov]

 

 
Copyright & Tattoo Flash Tattoo flash is not discussed in this article because the issues are clearer and less controversial. (And I love a good fight.) Artists that create tattoo design sheets own the copyright to their work at creation. When flash is sold, the creator sells the buyer a license to use the work for their own profit, essentially, to ink the designs from the sheets. Buyers of flash may resell their own copy of the flash — just like they can resell a book bought at the store — but may not make copies of the flash and sell or exchange the sheets or even give them away for free. That would be copyright infringement.

 


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:

If tattoo artists or tattoo owners wanted to protect their original custom work from being duplicated, they could seek to register their work with the U.S. Copyright Office (copyright.gov)

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:

“Attempting to bring lawyers in always makes things worse. They are the Harpies, they shit on everything they feed on. No one in their right mind would ever try to bring lawyers into the tattoo world, especially not for something as trivial as this. They will look for those who want to celebrate their status as victims, and those of us who want to live lives of creativity will suffer.”

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:

“Tattooing as an artistic culture is highly derivative and once an image is out in the community it is fair game for reproduction. We take art from all cultures and all styles and transform them into skin art. It is impossible to make two absolutely identical tattoos, and even if the client asks for a copy they will get their artist’s version of it, based on subtle changes to fit their body and the artist’s competence.”

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:

Example: Betsy’s book How to Lose Weight is original in the copyright sense so long as Betsy did not create her book by copying existing material — even if it’s the millionth book to be written on the subject of weight loss.

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.

DAMAGES

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,

“Karma can be a wonderful thing. Artists who rip off and steal from others usually have other faults that are easier for the public to identify and latch on to. Those ‘artists’ will usually find themselves holding the short end of the stick as other reputable and true artists surround them and take their business.”

TRADEMARK

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:


MK: What was your reason for trademarking your tattoo? Was it to protect the image as your logo or to protect the integrity of the tattoo design? Or any other reason?

EA: The attorney came to me (he was a customer) and he suggested it. He felt that my wings were recognizable enough (in relation to me as a professional piercer) that protection was warranted. They are service marked. This offers legal protection in conjunction with commerce relating to body piercing services. Also, with his assistance, my wings logo, and the name “Rings of Desire” both got Service Marked, too.

MK: Do you own the trademark independently? Does Bob Roberts have any rights to the design?

EA: I own it independently. I told him I was planning to do it. He was (as is his way) rather blasé about the whole thing.

MK: Have you ever pursued legal action for infringement of the service mark?

EA: No. But I have had the occasion to make a phone call and I explained about the service mark on the tattoo. I was able to say that using my picture in their TV ad for a piercing or tattoo studio was definitely illegal. They stopped using my image as a result.

The case I would prosecute is if a piercer got a copy of my tattoo and started using it to promote their business. That would be wrong!! If anyone knows of such a case, I would sincerely appreciate that being brought to my attention.

MK: What has been the reaction to your service mark from the tattoo community?

EA: People think it is interesting. I think they mistakenly believe I did it so nobody else would copy the design (and get the “same” tattoo on them). It doesn’t relate to that at all.

MK: What are your feelings on tattooists or tattoo wearers copyrighting their original custom tattoo designs — not to protect their trademark — but to ensure that no one else copies their tattoo?

EA: Mine is Service Marked, which is different. But I think it is totally fair for original artwork of all kinds to be copyrighted, including tattoos. I have to say, even though imitation is considered a form of flattery, it really freaks me out to see my wings tattooed on other people! They are an original, very personal artwork. They were designed by the artist, and myself, working together to create the design that was perfect for me. The idea that someone saw a picture, and brought it to an artist to be copied, shocks and disturbs me!

In my opinion an ethical artist won’t attempt an exact replica. Even though they stand to profit by doing it. They should work with the client to customize the design. There are many possibilities for wings. Why does it have to be mine that they get? Because it’s easy? I think it would be much more rewarding and positive to have a custom artwork anyway.

So, people can and probably will still get copies of my wings tattooed on. My advice: be original!!

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:

“Beyond the hope that this legal action will protect the interests of both Elayne and the public, the trademark of the angel wings tattoo is an important milestone for everyone in the body art industry. By agreeing to register a tattoo, the US Patent and Trademark Office has indicated that the products of our studios are indeed commercial artwork and worthy of legal protection. A tattoo can now be afforded the same consideration granted a piece of poetry, music or art used in the business world. Having this legal precedent on our side serves to further establish body art as a profession in the eyes of the law.”

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:

“I can see shady figures using the possibilities of copyrighting tattoos as a means to destroy competition — but on the other hand, it seems the body mod community has been handling these things very maturely — so far. I wonder what’ll happen when body modification completely hits the mainstream and some multimillion dollar corporation starts putting a tattoo shop in every town and using their company lawyers to push the competition in the gutter. Scary thought!”

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.

Marisa Kakoulas


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


Article by Marisa Kakoulas. Copyright © 2003 Marisa Kakoulas. Online presentation copyright © 2003 BMEzine.com LLC. Requests to republish must be confirmed in writing. For bibliographical purposes this article was first published online December 8th, 2003 by BMEzine.com LLC in Tweed, Ontario, Canada.


Leave a Reply

Your email address will not be published. Required fields are marked *

You may use these HTML tags and attributes: <a href="" title=""> <abbr title=""> <acronym title=""> <b> <blockquote cite=""> <cite> <code> <del datetime=""> <em> <i> <q cite=""> <strike> <strong>