Dissertation Final Chapter: The Protection of Tattoos
There are a plethora of potential pitfalls associated with the legal protection of tattoos, although there have been cases around the world in which the issue of intellectual property (also referred to as IP henceforth) in which the owners and creators of certain tattoos have brought legal action as a result of the use or perceived misuse of the artwork (O’Connor, 2015). O’Connor points to a recent, famous instance in which Mike Tyson’s famous facial tattoo was used in the film The Hangover—the directors and producers of the film utilized the tattoo as a comedic tool, but the tattoo artist, Victor Whitmill, filed a claim against Warner Brothers Entertainment as a result of the use of this particular tattoo (O’Connor, 2015). The claim was settled out of court, but there was speculation about the legality of this particular claim, and whether the claim would have been successful had it gone forward (O’Connor, 2015).
The instance with The Hangover is an excellent observation point for the overall understanding of the issues surrounding intellectual property and tattoos. While there is no doubt that intellectual property laws protect art, there are problems associated with applying intellectual property laws to things that are living and breathing in the ways that tattoos are—the tattoo industry has long been a largely self-regulating industry, but increasing acceptance of tattoos has also led to an increased number of individuals participating in tattooing subcultures (O’Connor, 2015; Perzanowski, 2012). As the subculture grows, legal questions begin to arise regarding the nature of art that is tattooed onto the skin, and the best ways to regulate the industry from an intellectual property standpoint (Perzanowski, 2012). Harkins (2006) suggests that one thing that increases the complexity of the issue is that there are commonly three affected parties in these disputes: the individual who has the tattoo, the tattoo artist, and an interested third party (Harkins, 2006). The legal question regarding who owns the rights to a tattoo remains to be resolved; the question of how best to regulate an industry like the tattoo industry for intellectual property violations also remains pertinent (Perzanowski, 2012; Harkins, 2006; O’Connor, 2015).
The purpose of discussion is the intersection and integration of social norms, industry norms, and legal norms. Determining how best to mobilize these factors and synthesize a new road map for the protection of the tattoo industry is the overarching goal, with a focus on the ways these forces affect each other and the strengths that each can offer to a potential solution.
Social Norms and Industry Norms
Merges (2013) suggests that there are some very specific reasons why there have been so few legal challenges to the issue of intellectual property in the tattoo industry until recently. Tattooing and the tattoo industry, Merges (2013) writes, is a trade where there is a remarkable amount of self-regulation, especially insofar as intellectual property is concerned; tattoo artists function through the use of prescribed and accepted social norms that forbid other artists from violating intellectual property rights as the industry itself understands them (Merges, 2013, Rosenblatt, 2011). Merges (2013) refers to these spaces where there are no legal restrictions but there are heavy social restrictions as “negative spaces” (Merges, 2013). The tattoo industry is one of the industries that utilizes “negative space”—this definition of negative space-- heavily, but there are others that use it as well—Merges (2013) cites French chefs as one such group. The similarities between these groups are distinct: they are all small groups with an emphasis on creative output (Merges, 2013, Rosenblatt, 2011).
Merges (2013) makes the argument that negative space is used effectively in the tattoo industry for a number of important reasons. The litigation of intellectual property, Merges (2013) suggests, is driven by the size of the industry. Merges (2013) writes that the value of industries like the tattoo industry is still quite small, especially when compared with an industry that relies heavily on IP litigation to protect ideas—like the pharmaceutical industry, for example (Merges, 2013). The small and specialized nature of this particular industry—the tattoo industry—is such that the use of specialized solutions to protect intellectual property is extremely effective (Merges, 2013).
Despite evidence that suggests that the tattoo industry is successful with the use of creative solutions to the problem of intellectual property, Merges (2013) recognizes that this might not be enough for the success of the industry. Merges (2013) writes, “the most important industry studied, fashion, is one where many firms are actively lobbying for stronger IP protection – undermining the idea that they are more profitable in a low-IP, negative space setting creative responses to the lack of IP may well be clever, but they do not prove the case for ‘negative space.’ While I do not want to minimize the creative ethnographies behind negative space studies, I would like to deflate at least somewhat the grander theoretical implications of this body of work” (Merges, 2013). Merges (2013) argues against the use of negative space as a long-term solution, but also recognizes that the solutions presented by the creativity within the industry have been successful thus far in protecting the majority of individuals working in and affected by the tattoo industry.
The changing nature of culture and social norms has had a dramatic impact on the tattoo industry in a variety of ways (O’Connor, 2015; Irwin, 2003; Lin, 1999). Lin (1999) states that the perception of an individual has a large impact on the ways that the legal system treats that individual; perceptions about an individual’s participation in a subculture like the tattoo subculture has, in the past, been a barrier to entry for individuals interested in utilizing the legal system (Lin, 1999; Posner, 2009).
Because of these barriers, the tattoo industry has had to build its own protections regarding originality and content (O’Connor, 2015; Posner, 2009). O’Connor (2015) suggests that the tattoo industry’s roots in “subculture” has had a lasting impact on the development of intellectual property law applicable to tattoos, tattoo artists, and the tattoo industry as a whole (O’Connor, 2015; Merges, 2013). O’Connor (2015) suggests that the perception of a lack of monetary gain is another reason that individuals in the legal system have long ignored potential cases regarding IP and tattoos, indicating again that insular subcultures are generally treated differently by the civil legal system (O’Connor, 2015; Lin, 1999; Harkins, 2006).
Whether negative spaces exist perpetually is not necessarily an important cause for concern regarding the nature of the tattoo industry—as it exists today, the tattoo industry is operating outside the legal norms of society, but within its own legalistic structure, with rules and regulations, and even punishments when someone runs afoul of the structure of the society (O’Connor, 2015; Harkins, 2006; Merges, 2003). However, the insular nature of the community is changing, and with these changes has come increasing questions about the nature of the legality of tattoos and the intellectual property associated with tattoo creation.
It was not until relatively recently that tattoos began to drive legal disputes regarding the nature of intellectual property. There are problems associated with the use of legal protections for tattoos—most clearly because there is a question of who, in fact, owns the rights to the artwork. Harkins (2006) notes that during legal claims on tattoos, there are generally three parties involved: first, the individual who owns the tattoo; second, the artist who created the tattoo; and third, a third party, usually an individual who stands to gain or lose financially from the existence of the tattoo on the first party (Harkins, 2006; Perzanowski, 2011). Perzanowski (2011) notes that there is particular trouble for artists who have created a custom piece—not flash work—and drawn it directly onto the client’s skin without using trace paper (Perzanowski, 2011). This further complicates the legal question regarding the ownership of the intellectual property rights to a specific design (Perzanowski, 2011).
Returning once again to the legal question of Mike Tyson’s tattoo, The Hangover, and the rights of the artist, there is a considerable legal question that exists regarding the nature of intellectual property ownership for this particular tattoo (Perzanowski, 2011, O’Connor, 2015). Everyone involved seems to have an excellent claim to the intellectual property rights—and use of—the tattoo; however, the decision had to be made one way or another regarding who actually had the property rights to the tattoo itself; this particular case was settled out of court, so no precedent was set (Perzanowski , 2011; O’Connor, 2015). However, there were a number of troubling issues that were raised at the trial regarding the nature of intellectual property in the tattoo industry (Perzanowski , 2011). Perzanowski (2011) writes, “In an expert witness declaration, David Nimmer offered a number of legal conclusions suggesting that Whitmill was not entitled to copyright protection for Tyson’s tattoo Nimmer argued in his capacity as an expert that Tyson’s skin did not qualify as a tangible medium of expression But those quintessential examples of transitory media are a far cry from the lifelong fixation of a tattoo. More plausibly, Nimmer pointed to the useful article limitation on pictorial, graphic, and sculptural works as a separate basis for denying protection” (Perzanowski, 2011). The problem is legally so complex because it deals with so many rights that are fundamentally important—the right of the individual to his or her own body, the right of an artist to protect his or her work, and the right of a third party to use intellectual property for legitimate means.
O’Connor (2015) notes that the first owner of any work of art is the individual that created the work of art; this, of course, is the tattoo artist (O’Connor, 2015). It becomes slightly more convoluted as a legal question, however, when the issue of owning a piece of art on another person’s body is concerned—does this negate the right of the artist? Does the artist forfeit his or her rights to the piece of art once it is tattooed, or does the individual forfeit the real estate on his or her body? O’Connor (2015) suggests that the overall answer to this particular question is one of circumstance, not one of absolute legality. Because circumstance can change drastically, the owner of the tattoo could also change (O’Connor, 2015). O’Connor (2015) also notes significant privacy rights that could be violated should the tattoo client not retain the rights to the art once the art is inked on skin (O’Connor, 2015).
The Interaction Between Industry Norms, Social Norms and Legal Norms
Irwin (2003) suggests that a divide in tattoo subculture has occurred in recent years, leading to a conflict between social and industry norms and legal norms. In the past, tattooing has been an activity that has largely been relegated to a specific subculture; this subculture is often associated with illegal activity and a general distrust of the legal system (Irwin, 2003). Changing social norms has lead to a change in the type of people that get tattoos—that is, there is no longer a single “type” of people that get tattoos (Irwin, 2003; Fenske, 2008). While tattoos are still not as mainstream as other kinds of body modification like ear piercings, Irwin (2003) suggests that twenty-one percent of American adults now have a tattoo. This is a significant percentage of the population, and it makes sense that in today’s world, the issue of tattoos and ownership is becoming more mainstream as well.
Merges (2013) suggests that the small nature of the tattoo industry is what protected it from the need to use intellectual property law for so long, and evidence suggests that this is, indeed, the case. However, as tattoos move into the spotlight and into everyday life more frequently, questions are raised about the integration of privacy rights, copyrights, and financial rights to pieces of work that are etched into the skin (Merges, 2013; Harkins, 2006). If the industry continues to grow, it seems likely that there will continue to be legal questions raised about the right of the creator versus the right of the wearer; these are the same questions that have been raised and answered, to some extent, in the fashion industry (Merges, 2013).
Posner (2009) suggests that there is a point of intersection between deviant subcultures like the tattoo subculture and the legal system; this point, according to Posner (2009), is the equilibrium point for a subculture that has been absorbed into the mainstream (Posner, 2009). Tattoos are one of these subcultures that has been recently absorbed into the mainstream, and as a result, changes have occurred in the subculture. The literature seems to suggest that there is a convergence occurring between the legal system and the tattoo industry. It is common for the legal system to lag behind advancements in society and culture, particularly because precedent is not set until a case is brought before the courts (Harkin, 2006). As culture changes and tattoos become prolific and ubiquitous, regulations regarding the nature of intellectual property will change, negating the use of negative space as the sole method to control intellectual property in the tattoo industry, for better or worse.
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