There were some interesting tattoo news items published the past few days -- in addition to those on nipple tattoos and tattoo copyright issues -- so I figured I'd highlight them:
When I started writing about tattoos and copyright law over a decade ago, I never really imagined just how seriously the rights of tattoo artists would be taken in the legal world and by big business. The issue of "Who owns your tattoo?" seemed to me, in the beginning, to be more like a cool question on one of my old law school exams and not one that has teams of lawyers making policy decisions based on tattoos. But it now has.
Last August, in my "Tattoo Copyright & Celebrities" post, I wrote about how the issue of copyright ownership concerning tattoos on football players was "a pressing issue" within the NFL Players Association. As this Forbes article notes, "[...] the association advised agents to tell their players that, when they get tattoos going forward, they should get a release from the tattoo artist, and if they can track down their former artists, they should get a release."
That's just what famed tattooed quarterback Colin Kaepernick did. According to the ESPN article "New 'Madden': Deal done in ink," Kaepernick is the first player in the history of Electronic Arts Sports' Madden video game franchise who will have his tattoos featured in a game because he took care of the tattoo copyright issues -- he got written permission to use the tattoo artwork from his tattoo artists.
As ESPN writes:
"We want to be as authentic as possible, so we were pleased that Colin was able to secure the rights to the tattoos," said Seann Graddy, senior producer of "Madden 15," which will hit the shelves on Aug. 26. "There's a ton of buzz around this. In this game, we only have Colin's tattoos, but we'd love to secure the rights to the tattoos of other players in the future."As the article notes, Kaepernick didn't have too much of a hurdle getting permissions because his extensive tattoo work was done by just two artists, Nes Andrion of Endless Ink in Reno, Nevada, and Orly Locquiao of Humble Beginnings in San Jose, California. However, so many sports figures are scratchpads for a multitude of artists they may not even remember, and so securing rights could be more difficult in those cases.
The issue of tattoo copyright really got people's attention with the infamous Mike Tyson Tattoo Copyright case, which I wrote extensively about here, here, and here. In that case, the tattooist who tattooed Tyson's facial tattoo, Victor Whitmill, sued Warner Bros. for copyright infringement in prominently featuring his tattoo design in The Hangover 2 and its advertising. When the court started taking the tattooist's claims seriously, the case settled, and big businesses and entitles like the NFL also started to take tattoo art seriously.
Yet, as this case with Kaepernick shows, respecting the rights of tattooists doesn't have to be problem; it can be a partnership.
Tattoos of Staff Sgt. Adam Thorogood above.
On Friday, I wrote about one of the most popular tattoo images on those who serve and have served in the military: the Fallen Soldier / Battlefield Cross tattoo, a tribute to those lost to war. In fact, most of my friends in the military have some form of memorial tattoo -- some citing their tattoos as personally cathartic or a way to share stories about those honored in their artwork. Considering the ancient practice of marking warriors with tattoos, it is hard to break that act of expression.
On April 30th, the newest revision to the US Army's regulation on grooming and appearance standards, AR 670-1, took effect, and it has provisions that are causing some controversy -- and even prompted a law suit. As noted in Army Times, the rules ban tattoos below the knee or elbow, although soldiers who already have such tattoos are "grandfathered" in. A big issue, however, is that the new regulations bar any soldier with tattoos from seeking a promotion to warrant officer or commissioning as an officer.
One guardsman who served 10 years on active duty, Staff Sgt. Adam Thorogood, has filed a $100 million lawsuit in response to the ban, which has stopped him from "fulfilling a dream of joining 'The Nightstalkers,' the 160th Special Operations Aviation Regiment at Fort Campbell, Kentucky."
According to this Army Times article:
The lawsuit acknowledges that troops have an abridged right to free speech, but only insofar as it hinders their mission, discipline morale or loyalty. The lawsuit argues in effect that the ban itself is hindering the Army's mission, since it is preventing the most qualified candidates from applying to become officers or warrant officers because they have certain tattoos.The lawsuit has gotten a lot of media attention, and it should be interesting to see how this plays out in federal court.
Also, at issue with the new revisions to AR 670-1 is whether the new grooming standards discriminate against African-American women serving in the Army, as regards to a section called "female twists and dreadlocks," which bans "any unkempt or matted braids or cornrows."
While the military has a long-standing tradition of conservative appearance regulations, many argue that they must be brought up to today's norms of appearance and reflect the diversity of its soldiers. Thorogood's lawsuit should have an impact on this debate.
Beyond the rules and regs, today is a day to reflect on those who have given their lives in service and to honor them in our own ways.
A Kansas man who is charged with murder asked the court to either remove or cover up his large neck/throat tattoo -- a tattoo of the word MURDER in mirror image (it's art just for him!) in big shaky block letters. Ok, I'll let that sink in for a while.What do you think? Share your thoughts on the Needles & Sins FB group page under this post link.
This isn't a post on bad life choices, however. For me, especially as a lawyer, I'm interested in the issue of justice and what constitutes a "fair trial." According to the Great Bend Tribune, the attorney of Jeffrey Wade Chapman is asserting that there would be no fair trial if a jury were to see that tattoo (a tattoo that was done over a year before the crime he's accused of). The Tribune wrote:
According to the motion filed by defense attorney Kurt Kerns, Wichita, Chapman has asked the jail to allow a professional tattoo artist to remove and/or cover up the tattoo across his neck that is a mirror image of the word "murder" in capital letters. The motion notes it is a large tattoo that cannot be easily hidden with clothing.The State replied that they don't allow tattooists to practice in jails [Kansas Administrative Code 69-15-14 states, "tattoo artists shall not practice at any location other than a licensed facility," which meets specific hygiene standards set by the Kansas Board of Cosmetology.]
And so, today, an agreement was reached that Chapman would wear a turtleneck in court. Problem solved!
But the issue of having prejudicial tattoos on view in a criminal trial has been much more difficult to address when they are facial tattoos -- and there are A LOT of gang/criminal/racist facial tattoos out there.
As I wrote about back in 2009 in my Tattoos as Evidence in Criminal Trials post, a Florida judge granted a motion to have the state pay a cosmetologist $150 a day to cover the Neo-Nazi facial tattoos of a man who was facing the death penalty for murder, stating "the tattoos are potentially offensive and could influence a jury's opinion." Naturally, the act of tax payer money going to a make-up artist to help a racist accused of murder didn't sit well with many people. The NY Times had interesting coverage of that case -- as well as a description of the cover-up process.
For more of discussion on tattoos as evidence, here's a list of cases from my 2009 post:
In Dawson v Delaware, the US Supreme Court said the defendant's First and Fourteenth Amendment rights were violated when the prosecution admitted his Aryan Brotherhood tattoo into evidence -- the murder he committed wasn't racially motivated and so the hate group association and tattoo were not relevant.
However, in Wood v State, the Eleventh Court of Appeals in Texas ruled that the prosecution did not violate a defendant's First Amendment rights when commenting on his tattoos -- text on each eyelid that said "Lying Eyes." The court said that, unlike the Dawson case, the tattoos were not used to show gang affiliation but "to show his disregard for the truth and his moral character. A person's tattoos can reflect his character and demonstrate a motive for his crime." For interesting commentary on this case, read what Eugene Volokh has to say.
In NY, the state's highest court ruled in 2004 that Nazi tattoos could be used as evidence that a defendant committed a hate crime in The People v. Slavin. In that case, Slavin was tried for luring two Mexican laborers into an abandoned warehouse and killing them. During the trial, to show hate was a motivating factor, the prosecution offered jurors a slideshow of Slavin's tattoos including black swastikas, a white fist and a skinhead kicking a large-nosed man wearing a skullcap. Slavin appealed saying that this violated his Fifth Amendment rights against self-incrimination. The NY Court of Appeals disagreed saying:
"We conclude that defendant was not "compelled ... to be a witness against himself" within the meaning of the privilege. The tattoos were physical characteristics, not testimony forced from his mouth. However much the tattoos may have reflected defendant's inner thoughts, the People did not compel him to create them in the first place."
Knuckle tattoos by Chris Compton of Broken Lantern Tattoo, Charleston, SC.
It hasn't been that long since state-wide tattoo bans in the US were lifted. Oklahoma was the last state to legalize tattooing in 2006. And I was just reminded that South Carolina is reaching its 10th year of legal tattooing since 2004. It's amazing to think just how much has changed in such a short period of time.
According to SC Now's Morning News, more than 100 licensed tattoo studios are operating around the state, and despite the fear that legalizing "would invite drug use, pornography and assorted other evils," that hasn't happened. In fact, there has hardly been any real action against tattoo studios in South Carolina. As the article explains:
The state Department of Health and Environmental Control [DHEC], which regulates tattoo parlors, has taken action against only 12 shops since 2006, according to records obtained by The Post and Courier through a Freedom of Information Act request.South Carolina has some of the strictest tattoo laws on the books, including a prohibition on neck, face, and head tattoos, and the above-mentioned rule against opening a shop 1,000 feet from a church, school or playground. The DHEC has two health inspectors who make their rounds around the state every three years to ensure that each studio is complying with the regulations. And so, in light of such oversight, it's interesting that so few violations of the regs have been found.
It was the concern over health risks, particularly hepatitis, that led to South Carolina's tattoo ban (among other states). The problem was that a blanket ban violated the rights to free expression of artists and collectors. [I've written about tattoos and First Amendment issues here.]
It was this right to free expression that formed the basis of White v. South Carolina, a case challenging South Carolina's tattoo ban, which was appealed to the US Supreme Court; however, the highest court in the country chose not to hear it.
In White v. South Carolina, Ronald P. White was arrested and convicted in 1999 for violating the tattoo ban in South Carolina after video of him tattooing was broadcast to a local TV audience. White admitted to violating the law, but argued that the law violated his First Amendment rights. This case was argued up to the South Carolina Supreme Court, which found that "the state's legitimate concern about any health risks associated with tattooing outweighed whatever expressive concerns White and other tattoo artists may have." More on that case here and see the S.C. appellate case here.
Despite the court rulings, in June 2004, tattoo artists could practice their craft. And so, with over ten years of proving tattoo opponents wrong, we can celebrate tattoo expression in South Carolina and across the country.
On Friday, Washington D.C.'s Health Department released a 66-page notice of new proposed regulations governing "body artists and body art establishments," which has caused a huge buzz -- and rightfully so -- because of some ridiculous provisions thrown into the mix.
One such proposal is the 24-hour waiting period to get a tattoo. As reported in the Washington Post, regulations governing tattoos and piercings were passed by the D.C. Council last year. D.C. Council member Yvette M. Alexander introduced the body art bill when she discovered that D.C. was one of the few places that did not regulate the industry. Naturally, many professional tattooers support reasonable regulation to maintain health and hygiene standards; however, within these new proposed regulations are "moral" not health protections, which could, in fact, subvert the whole purpose of having any regulation at all.
As Paul Roe of British Ink told the Washington Post: "Simple regulation is effective regulation. Overregulation will kill the profession and drive it underground and make it less safe for everybody." Paul also noted in the Needles & Sins FB page: "D.C. released these with no input from the industry, just unqualified council and health dept committee patchwork regulations."
The 24-hour waiting period proposed was inspired by rules passed in two Wisconsin municipalities, but it has not passed in big cities like D.C. One reason is that it would be an incredible drain on city resources to actually enforce. Will city health officials become tattoo regret police? Perhaps they should also hang out at bars at 1am and help prevent other regrettable decisions, like hooking up with the guy in the Nickleback t-shirt.
The ridiculousness is not lost on many. Tons of media outlets have decried the waiting period and even the Post article notes that the spokesman for Mayor Vincent Gray said that "the Mayor has 'serious doubts about the regulations as proposed' and will consider the comments received before issuing final regulations."
The comments are a good way to take action to ensure that provisions like the waiting period are stricken from the rules that get adopted. There's a 30-day period for commenting, which began Friday. You can submit your arguments to Angli Black at (202) 442-5977 or email Angli.Black@dc.gov.
Last week, social media was buzzing with posts about the Arkansas State Senate Bill that would "ban certain tattoos, which it characterized as 'untraditional'." And like so many things you read on social media, the posts were riddled with errors and drama. We even had a heated discussion about it on our N+S Facebook group page, with some interesting comments from members that went beyond discussion of the supposed bill but about regulation of our industry in general.
In that group discussion, Erik Sprague aka The Lizardman posted a link to bodymod.org, which offered the correct and insider info of how the Arkansas Body Modification Association worked with legislators to remove provisions of a proposed bill that would ban certain types of body art in favor of regulation -- regulation that was helped shaped by body modification practitioners.
Today, the news media, well, at least MSNBC, caught on and set out to correct the errors floating around the discussion of Arkansas' body art law. Here's a bit from the article:
At issue is Arkansas Senate Bill 387 which both chambers of the Arkansas state legislature actually passed in late March of this year. The bill was then signed by the governor. Rather than banning tattoos or cracking down on the body art industry-as many headlines have suggested-the bipartisan legislation actually legally redefines the term body art in Arkansas to add the practice of scarification-the scratching, etching or cutting of the skin to produce a design.Read more here.
At least now the debate can center around people's thoughts on regulated versus unregulated aspects of our industry rather than hysteria and mistruths.
Video screen capture above from Yahoo Fantasy Sports: Colin Kaerpernick Ink.
Last week, Forbes published an article entitled "Questions Concerning Copyright Of Athlete Tattoos Has Companies Scrambling." It's amazing for me to watch the evolution of the tattoo copyright concept because, when I started writing about it in 2003, people kind of laughed at it: some fellow lawyers told me that tattoos would never get copyright protection and tattooers told me to keep my dirty legal paws off the art form. Not many people took it seriously. Ten years later, people are definitely paying attention, particularly companies and organizations who may risk law suits from tattooers when they wrongfully appropriate a custom tattoo design. And that's what this Forbes article is about in relation to the National Football League and companies that make money off of athletes outside the field.
According to sources speaking to FORBES on condition of anonymity, the issue of copyright ownership concerning tattoos on football players has very recently been labeled as a pressing issue by the NFL Players Association. One source said, "I don't blame [the NFLPA], but they should have been on top of it earlier. It was something that was mentioned at the NFL Combine -- that was the first I had ever heard them mention anything on the issue of tattoos. They advised agents to tell their players that when they get tattoos going forward they should get a release from the tattoo artist and if they can track down their former artists, they should get a release.Getting a release means that the tattoo artist gives up his/her rights to the custom tattoo work (notice, I'm not talking about tattoo flash, which is another issue altogether). Many artists I know would have no problem with this: some may believe that the press generated from the tattoo may bring in more business, some just like seeing their artwork being shown to a wide audience, and others really don't care what happens with the tattoo when it walks out the studio door.
But there are options for artists regarding the rights to their work:
Here's one of the biggest problems: Athletes and celebrities are NOTORIOUS for having bad tattoos. Why? When they want them, they want them at that moment. I hear countless stories of celebrities walking into a shop and expecting the artists to put down their machines and take care of their immediate tattoo needs. So, do you think that many even remember who tattooed them? On bodies filled with little bangers, are they going to travel the world trying to find all the artists who worked on them so they can sign a contract? It's not practical for so many.
Articles on tattoo copyright today cite the issues that arose in Whitmill v. Warner Bros. Entertainment Inc -- the Mike Tyson tattoo case, which I wrote about here, here, and here.
In that case, the tattooist who tattooed Mike Tyson's infamous facial tattoo, Victor Whitmill, sued Warner Bros. for copyright infringement in prominently featuring his tattoo design in the The Hangover 2 and its advertising. In the film, a bachelor party once again leaves its wacky heroes with no clue of what happened the night before, except for a facial tattoo on the groom Stu played by Ed Helms--a tattoo that is practically exact to the one Whitmill inked on Tyson. The lawsuit sought damages and an injunction to stop the use of the tattoo in the film, which would've delayed its big Memorial Day release. The injunction wasn't granted but Judge Catherine D. Perry of Federal District Court in St. Louis did say that Whitmill had a "strong likelihood of prevailing on the merits for copyright infringement" and that most of the arguments put forward by Warner Bros. were "just silly." The case settled soon after in June 2012.
But this wasn't the first case of tattoo copyright involving celebrities. In 2005, Portland tattooist Matthew Reed sued Rasheed Wallace and Nike to stop them from using the custom tattoos he designed for the basketball star in a Nike sneaker ad. The ad focused on the tattoo and even simulated its creation. Also in 2005, UK tattooist Louis Molloy threatened to sue David Beckham if he went ahead with a promotional campaign that also focused on a tattoo Molloy did for him (the guardian angel tattoo). With no clear answer on how judges would go in the cases, agreements between these athletes and artists were reached outside the courts.
The bottom line is that there would have been a less likely chance of the tattooists even thinking about a lawsuit if there was an agreement before the tattoo session even started, or at least a conversation about who owns the rights to the custom work.
Yet, should lawyers be brought into every session?
Will the whole discussion of rights mar the experience of getting a tattoo?
Or does it even matter?
Will it just be like the waivers and releases clients sign before they get tattooed?
It's tricky. There are no easy answers -- which makes it an interesting discussion, and also a scary one for the NFL and companies doing business with heavily tattooed celebrities. And like I have for the past ten years, I'll keep watching how it plays out.
For more on my writing on tattoo copyright check these links:
Photo via Wate.com
On more than one occasion, my tattoos have gotten in the way of getting food and drink. A seaside restaurant in Greece made it clear they didn't like my tattooed kind and ignored me until I left. A bouncer at an upscale rooftop bar in Manhattan informed me that "this wouldn't be my type of place." In the end, I was happy not to give my money to such places, but it did put a damper on my good time. I don't do well with people getting in between me and a glass of Sauvignon Blanc.
That said, private establishments do have a general right to have dress codes and to deny those that don't fit their "type of place" as long as the discrimination is not based on a protected class, like religion, race, and sex, among others.
Last week, Bubba Brews, a restaurant on Norris Lake in Maynardville, Tennessee, told a tattooed patron, Mike, to cover up his tattoos, and so he did what many people do today ... he called the media claiming tattoo discrimination. Check the video below.
But something about this incident didn't have me waving the tattooed freak flag and instantly supporting claims of injustice. The owner of the restaurant was tattooed, and the news cameras showed that there were plenty of tattooed patrons. It was the content of the tattoos that were the problem. Aside from his classy, "I <3 Strippers" throat tattoo, he also had work that said, "Don't be a dick," and a rib piece that was blurred out, which was a youthful mistake. Considering there were kids at the restaurant who were trying to read his tattoos, they asked him to keep his shirt on. He didn't like that.
I don't think it's unreasonable for a restaurant owner to worry about losing family clientele, and as such, ask a patron to cover up that youthful mistake, but still offer service. If I was the restaurant owner, I would have offered Mike a free drink in exchange for him putting on a shirt and being cool.
It's a slippery slope argument, though. What really is an offensive tattoo? Is it one of those "I know it when I see it" standards? How does one balance the rights of a private business owner to keep a certain reputation with the rights of tattooed people not to be denied the right to be served?
I don't think these are easy questions. But in this particular instance, I think someone who has tattoos that have to be blurred out on TV should take some responsibility, put on a shirt, and follow his tattooed mantra, "Don't be a dick."
What do ya think? Share your thoughts on our N+S Facebook page or Tweet at me.
Next Sunday, June 2nd, I'll be giving a Tattoo Law Talk, after the Bloodborne Pathogens Training, at Sacred Tattoo at 424 Broadway, NY in SoHo. The training -- which will satisfy artists yearly OSHA requirement -- runs from 1 to 3:30pm. And my talk is from 4-5pm.
You can attend both or just come in for one of the classes. The best part: it's only $40. When was the last time a lawyer talked to you for so little?!
I'll be giving an overview of the top tattoo law issues facing studios, artists and collectors as well. My talk will cover the following:
You can reserve your spot via Unimax Supply here. Hope to see you Sunday, June 2nd!
Earlier this month, tattoo news headlines included a story of how an Australian politician proposed a ridiculous anti-tattoo law that seemed like the work of another conservative crackpot. However, it turns out, that it is indeed something to pay attention to and fight. Sharron Campbell, a solicitor in Queensland, who works in privacy and information rights, explains here how serious this issue is and how all of us around the world can get involved.
By Sharron Campbell
Down in Queensland--land of beers, barbies, and shrimps to throw on them--a politician has proposed that anyone who gets a tattoo should be registered with the government. He thinks this will somehow stop bikie gang money laundering. Natural first reaction is to laugh: a law that ridiculous could never happen, right?
Australia has limited rights to free speech, there's no Bill of Rights, there's no general right to privacy. And in New South Wales, the State just south of Queensland, they passed laws just as bad as what's been proposed.
If you want to tattoo in NSW, you have to:
Once the wheels of government start grinding out a Bill it will be too late to stop it. Wherever you are in the world you can help, before it's law, before it goes any further, by telling the Queensland government this is not okay.
Find out how at www.tattoosarenotacrime.net.
I had a wonderful time yesterday at Fordham Law School for the Fashion Law Institute's discussion entitled Art Attacks: Perspectives on the Use of Fashion Logos, where I chatted on their panel along with Ralph Lauren's in-house counsel Anna Dalla Val; brand consultant and former in-house counsel of Louis Vuitton, Michael Pantalony; and David De Buck, owner of the De Buck Gallery, whose roster includes prominent street artists. The panel -- and the Fashion Law Institute as a whole -- is the brainchild of Susan Scafidi, whom I've had a law nerd crush on for a long time after discovering her fantastic blog, Counterfeit Chic, many years ago. She's a pioneer in fashion law, which -- like tattoo law -- is constantly developing and is pretty exciting.
The focus of the discussion was fashion logos and their appropriation in art as well as commerce. Naturally, I gave the tattoo perspective. As requested in our Facebook group, I'll give y'all a taste of my talk.
But before we get to it ... What is a Trademark or Servicemark?
Ok, with that in mind, I started my talk off with the very first tattoo to be issued a registration by the U.S. Patent and Trademark Office: Master piercer Elayne Angel's famous wings backpiece, tattooed by the infamous Bob Roberts in 1987 -- a tattoo that inspiring a myriad of copies throughout the world.
Those wings just didn't become easily identifiable with Elayne, but her piercing services and Rings of Desire studio in New Orleans (which closed post-Katrina). It was Elayne's brand.
In 2003, when I wrote "The Tattoo Copyright Controversy," I interviewed Elayne about her servicemarked tattoo, which had been registered the year before. She explained that a customer, who was a lawyer, told her that he felt her wings were recognizable enough -- in relation to her as a professional piercer -- that protection was warranted. The process took six years but, on November 5, 2002, her backpiece was registered. It was not just the first tattoo registered, but it is believed to be the first feature of the human body to be registered. Cool!
But then I turned my discussion to people who get the brands of others on their bodies. People like the Gucci face guy or the Louis Vuitton sleeve dude below.
I tried to get in touch with these logo lovers, but to no avail, so I put out a call on the Facebook group page asking people to tell me about their logo tattoos. I'm grateful for all the responses. Many of y'all have band tattoos and great stories behind them, but as the focus was fashion for the panel, I was particularly interested in the story of talented tattooist Ania Jalosinska, of Kolektiv Tattoo in Warsaw, Poland.
Ania wears the United Nude logo and shoe design, which you can see here. The work was designed and tattooed by JEF. Here's what she said about it:
It says nothing more then a total loyalty, love and appreciation of a brand. Their shoe design is brilliant, both from an aesthetics standpoint and engineering standpoint. Getting a logo wasn't an initial idea; I wanted a leg on a side of my leg, but since I love UN shoes and wear them all the time, it was a no brainer what shoe the leg will wear. Their logo is just one of the graphic elements, which I also put in there because, as a tattoo artist and a graphic designer, I do appreciate design of it as well.I also think the Coco Chanel quote, "Elegance is refusal," is a nice touch to the tattoo.
Naturally, I also had to talk about how some brands are banking on tattoo cool in their marketing, like Marc Ecko's Branded for Life promo, where those who get Ecko logo tattoos also get "20% off For Life" on Ecko merch. When I first heard about the promo, I really couldn't imagine anyone would buy into it. I was really, really wrong. The Ecko tattoo fan gallery goes on for pages, filled with thumbnails of the tattoos like those shown below.
In the Ecko case, the brand courts the tattooed masses.
But what about luxury brands?
Do they want the great tattooed unwashed repping their fashion houses?
And if they don't, what can they do about?
Simply wearing the logo will not necessarily get you in trouble as there's little "likelihood of confusion," whereby, one could believe that the brand sponsored or is associated the wearer of the logo tattoo. Do we really look at the Gucci face guy and think he really is the new face of the brand?
Then there's the argument of "trademark dilution," in which the brand believes that the tattoos would "tarnish" their identity by presenting it in an inferior light or associated with "unseemly services." It's a fun legal argument, but practically, I don't think we have to worry about Louis Vuitton going after our skins.
I ended my presentation by acknowledging the power of logo tattoos and the desire to brand oneself with a brand that speaks to them, which can be beautiful. Of course, I couldn't help but note that we should also honor our very own identities, and like a couture gown, get a work of art that is specifically tailored to our own bodies.
Like everything else on this blog, it's not intended as legal advice. Just my personal blah blah.
Backpiece by Tim Kern.
Tattooing got another huge legal boost on Friday when the Arizona Supreme Court ruled that tattooing is free speech in the zoning case of Coleman v. City of Mesa (link to decision). This is the first time in the United States that a state supreme court has extended First Amendment protections to tattooing.
A federal court, the U.S. 9th Circuit Court of Appeals, ruled in 2010 that "tattooing is purely expressive activity fully protected by the First Amendment" in the case of Johnny Anderson v. City of Hermosa Beach, which was also a case where tattooists were denied the right to open up shop due to zoning restrictions. [My giddy discussion of that case can be found here.]
The Arizona Supreme Court noted that courts have been divided on the issue of tattooing being constitutionally protected expression (and gave example of different cases) but found that "the approach adopted in Anderson is most consistent with First Amendment case law and the free speech protections under Arizona's Constitution."
In both the Coleman and Andersen cases, the courts found that, not only tattoos but the process of tattooing, and therefore, the business of tattooing are protected speech. The Arizona Supreme Court also noted that this protection applies even if an artist is using "standard designs or patterns" like flash, just as cable TV companies are "engaged in protected speech activities even when they only select programming originally produced by others" (citing Turner Broad. Sys., Inc. v. FCC).
This is a win for the Colemans but the fight isn't over. The case now goes back to the superior court, which originally dismissed the tattooists' claims as a matter of law saying that the Mesa City Council decision in 2009 to deny the Colemans a permit to open their tattoo shop was "a reasonable and rational regulation of land use." The Colemans appealed and the Arizona Appeals Court overturned the Superior Court's dismissal finding that they should have had the opportunity to make their case. The City of Mesa appealed that, which is how the case found its way to the Arizona Supreme Court.
The Superior Court will now look at whether the decision to deny the permit served a compelling governmental interest and was reasonably related to furthering that interest. Local government does have an interest in regulating tattooing by protecting the health and safety of the public. The issue is whether the rules further that purpose.
In this case, the Mesa planning board had recommended that the Colemans be given a permit subject to certain conditions, like limiting the hours of operation, loitering, refusing to do racist and gang tattoos, and also working with police to identify known gang tattoos. They agreed to those conditions. But the Mesa City Council denied the permit, according to the Yuma Sun, "after hearing concerns from neighbors about the shop possibly drawing crime and reducing property values. Only Mayor Scott Smith was in support." Now Mesa needs to show that this decision was not arbitrary and irrational and did not go against the Equal Protection and Due Process clauses of the Constitution.
I'm guessing, or at least hope, that this case will settle. The tax payers of Mesa have already spent enough money on trying to stop a business from opening, when all a long they could have taxed them and gained revenue for the city -- and also made Mesa more artful.
Misspelled tattoos are not uncommon. Sadly. And unlike the many
In Canada's National Post yesterday, Armina Ligaya reports on a memorial tattoo gone wrong where a Nova Scotia small claims court ordered a shop to pay almost $9,000 to a client for laser sessions, travel and legal fees, and general damages. This is after the shop offered to cover up the spelling mistake -- which the client refused -- and then paid for eight laser sessions prior to the judgment.
The problem is that the studio stopped paying for the laser sessions, which is what sparked the suit. Personally (not in my legal opinion), if a shop is going to make amends for a mistake, it should do so in a clear and organized way, following through on promises, which should be written out and agreed to by the parties. For example, knowing how long and expensive laser removal can be, the studio could have limited its obligation by offering to pay for a set number of sessions -- say 10 to 12 sessions -- or until a certain percentage of the ink is gone. Then they could have had the client agree not pursue further action against the shop after those sessions. Everybody signs. Everybody knows what to expect. And hopefully, everybody abides by the agreement.
The client, who had the opportunity to review the lettering before it was tattooed, should also burden some responsibility, and maybe that's what the studio was thinking when they stopped paying. In fact, the article cites another Nova Scotia case where a judge ruled that a client with a misspelled tattoo was "the author of her own misfortune" when she reviewed the design on a computer design and stencil, and did not pick up the mistake.
But not returning the client's phone calls, as alleged, is not the right way to do business. People sue when they are unhappy and feel they're being mistreated. So many law suits can be avoided by better handling of client issues ... and of course, spell check.
Photo by Edgar Hoill
The long-debated issue within the tattoo community of regulating tattoo ink was recently discussed in this Chemistry World article, which is worth a quick read.
Generally, there's little to no regulation of tattoo inks in the US & UK, and it's largely self-policed. The big brands offer MSDS (Material Safety Date Sheets) to let you know what's in them. Here are some links to check those sheets for yourself: Intenze, Starbrite, and Eternal Ink. [Note the California-mandated warning on Papillon Tattoo Supply that states metals and toxic chemicals may be contained in inks -- although not specific to any brand.]
The debate tends to be whether self-regulation is better than that by the government. In the article, Alan Beswick, of the UK Health and Safety Laboratory says that perhaps it's better to keep it within the industry:
Beswick is keen to stress that he is wary of promoting regulation that would compel tattooists perform expensive testing on the dyes they purchase. 'I believe, and this is the case in many industries, that quality standards are raised from within and if clients and users of the inks start to ask questions of the suppliers then the chances are that those suppliers will have to up their game.'An argument against this, however, is that the market is flooded with ink suppliers from all over the world not taking the same precautions as the long-standing reputable brands. Pat Fish, whom I interviewed for Inked mag, says she won't use color inks anymore because she doesn't trust them, citing fungus found in batches of even famous inks. There are interesting arguments on both sides.
While there hasn't been an epidemic of poisoned tattoo collectors, many people do indeed have serious reactions, especially to certain colors. So you could ask your artist about the MSDS sheets if you're concerned. You may come off as a little uptight to some, but as Beswick notes above, it may encourage more artists, and then companies, to pay attention to what you're putting into your skin.
I've been called a Harpy. A pariah. A vampire sucking the soul of tattoo culture.
There are probably many other reasons for them, but often the context of such compliments are my writings on tattoo copyright.
During the legal circus surrounding the Mike Tyson tattoo in "The Hangover" film, which later settled between the tattooist and Warner Bros., I wrote about copyright particularly in light of this law suit.
I revisited this case in the March issue of Inked magazine, but also discussed further issues in tattoo copyright. Now that full article is available online for free. [For some reason, Inked decided to illustrate the article with tattooed boobs and butts, perhaps because they thought no one would read it.]
Entitled "Who Owns Your Tattoo?", the title and opening are intended to spark a bit of controversy. It starts off like this:
If you think that you alone have the rights to your own skin, you may be wrong. The idea of another person, or even a corporation, claiming ownership over your body may seem absurd, but as recent lawsuits for copyright infringement of tattoo art have implied, the courts could very well decide who gets a piece of you tomorrow.See what I mean? Harpy-like.
But beyond being controversial, there's serious talk about Fair Use, Work for Hire, Rights of Publicity, and Licensing. [In fact, licensing the artwork of tattooists has been a big part of my own legal practice lately.]
Check out the article and feel free to offer your thoughts via our Needles & Sins Group on Facebook or Twitter.
I've been meaning to post this excellent Miami New Times article on Florida's tattoo laws sooner but my own legal work took over last week. The story raises so many interesting issues on the regulation of the industry, which warrant serious discussion, and I'd love to hear your thoughts on our Facebook group page or via Twitter.
Reporter Chris Sweeney discusses the history and implementation of "The Practice of Tattooing," which went into effect January 1st. But even more interesting are the different factions of tattooers for and against enforcement of the law. Chris begins the article by setting the scene of a scratcher, Louie, tattooing a howling woman in his apartment. The woman's boyfriend had just gotten tattooed as well and is sleeping off the pain under a SpongeBob blanket. The family schnauzer roams into the room, looking for attention. Taking a break, putting his machine on a folding snack table (with a blue medical napkin on it), Louie grabs a Bud Light Platinum and tells his wife and daughter, "She's gonna take a crap when she sees how awesome this is."
That's all set out in the first three paragraphs of this 5-page article, and I'm already scared shitless. Maybe it's because Louie doesn't have an autoclave and operates in an unsterile environment. Or that people off of Craigslist come to him -- when he's not working at the hardware store -- to "salvage" the already bad tattoos they have, as you can see from the hot mess above. But what bothers me most are that there are tons of Louie's out there putting people at risk for more than just a shitty tattoo.
As Chris reports, the Center for Disease Control released a review of studies that found "no definitive evidence for an increased risk of HCV infection when tattoos and piercings were received in professional parlors." BUT the risk was "two- to three-times higher risk for HCV infection when the tattoo was received in a nonprofessional setting."
The new Florida law would make Louie's operation a second-degree misdemeanor (a felony if charged three times) and he could be fined $1,500 per violation. The law requires a yearly tattoo license for artists and shop registration, a 70% score on a blood-borne pathogens exam, and the studio must pass inspection by its county health department. No animals, no sleeping quarters, and there's got to be a working autoclave.
Most professional tattooists wouldn't have a problem with such regulations, especially compared to the previous law, which required shops to be under "direct supervision" (later changed to "general supervision") of a physician. Where the controversy really lies, as detailed in the article, is in its enforcement.
Tom Meyer, President of the Florida Tattoo Artist's Guild says his organization will work with health officials to crack down on violators:
"The big thing with the new law is it's all complaint-driven," [...] "So now, every time people come in with bad tattoos or tattoo infections, we as professional, legitimate shops will get as much information as we can on who did it and give that information to the health department or local police."Tom adds that this is all necessary to protect professional tattooing as a "viable livelihood." But other artists quoted in the article disagree with tattooists "ratting" each other out. Many expressed that self-regulation of the industry -- and just being a better tattooist -- is the best way to keep tattooing viable. In fact, some professional tattooers like Stevie Moon are seriously pissed off about this:
"You're supposed to help your brethren, not fucking burn them down," [...] "This is an organization I thought was supposed to support the community, and instead they want to try to police it. They're a bunch of scared little fucking boys still trying to start a tattoo mafia and make it legit by hiding behind this law and the whole scratcher thing."Personally, I can see both sides of the argument here. I'm in favor of regulation if it is drafted based on recommendations from the tattoo industry, which this was. But I feel that enforcement should be done systematically by health officials and not a tattoo witch hunt. [The fees and fines will pay for it.]
Many great artists started on kitchen tables, but today, with the easy accessibility of information, kits, supplies and clients looking for a deal, the risks are greater. Anyone looking to make extra money on the side can find a way to do it, not just the artist who truly wants to tattoo but can't find an apprenticeship.
So what do you think? Are you for stricter rules or self-regulation, and who should police those who don't follow the rules?
Call it my obsession, but I've been following the Mike Tyson tattoo copyright (almost as intensely as Beyonce's career) because of its potential impact on the rights of tattooists to defend their art from others who wish to profit from it.
For background, see my first post on it (with some general copyright info) here and the update here.
This post looks like my final update on the case because, yesterday, The Hollywood Reporter published the news that a settlement had been reached between Missouri tattooist, S. Victor Whitmill, and Warner Bros. Whitmill sued Warner Bros. for copyright infringement over its use of his facial tattoo design for Mike Tyson, which was prominent in The Hangover II film. The article stated:
The settlement was no surprise. As I predicted in my posts, these type of cases do tend to settle, and it was pretty clear that Warner Bros. would throw Whitman some money after the judge hearing the case had said that Whitmill had a "strong likelihood of prevailing on the merits for copyright infringement" and that most of the arguments put forward by Warner Bros. were "just silly."
While I'm happy that tattoo artists' rights to their designs were recognized, the tattoo law nerd in me wished that this case had been decided to finally see how the courts would rule on the issue.
Again, I fully believe in a balancing of these rights between client and artist -- or have those rights hammered out in advance between them, especially with celebrities -- but in this case, Tyson himself was not at issue. It was Warner Bros. use of the design in the films, ads, and to-be-released DVD.
Will post a link to this post soon on our Facebook page to get your thoughts.
"Of course tattoos can be copyrighted" -- Judge Catherine D. Perry
Three weeks ago, I wrote about the tattoo copyright controversy over Mike Tyson's facial tattoo and its use in The Hangover Part II film. As I noted in that post, Victor Whitmill, who did Tyson's tattoo in 2003, is suing Warner Bros. for copyright infringement in pirating his tattoo design in the film and using it in its ubiquitous promotion campaign. He filed suit seeking damages and asking the court to issue an injunction to stop the use of the tattoo in the film, thus barring the film's release this Memorial Day weekend.
According to the NY Times Media Decoder blog, on Tuesday, Judge Catherine D. Perry of Federal District Court in St. Louis did not grant the injunction, stating that the harm to the public interest -- businesses beyond Warner Bros that would lose money if the film were not released on schedule -- outweighs the harm to the tattooist. However, the case doesn't end here as the NY Times reports:
Those silly claims include the assertion that tattoos do not have any copyright protection. Warner Bros. pulled out the big guns by having copyright specialist Professor David Nimmer attest that the body is not "a tangible medium of expression," among other arguments including "involuntary servitude." Read Nimmer's declaration in support of Warner Bros. here. It's a departure from Nimmer's original assertion in his treatise on copyright that tattoos are protected under the law. This flip flop did not go unnoticed.
With regard to Warner Bros.'s parody defense, the NY Times quotes Judge Perry: "This use of the tattoo did not comment on the artist's work or have any critical bearing on the original composition. There was no change to this tattoo or any parody of the tattoo itself. Any other facial tattoo would have worked as well to serve the plot device." [Some experts like Professor Eric Goldman disagree with the last sentence.]
What most experts do agree on is that this is not a frivolous case and Whitman could receive a big settlement.
Read my original post for the breakdown of issues surrounding this case.
I'd like like to add one more thing: This isn't a case about a tribal tattoo. It is about protection of works by tattooists. It may not stop companies from ripping off artists (especially apparel companies who are notorious for stealing tattoo designs), but big settlements may make them think twice about continuing to do so.
[Thanks to Benjamin for the Nimmer links.]