Photo by Edgar Hoill.
The most interesting recent tattoo headlines centered around the law, and you know how much I love this stuff -- from victories over dumb legislation, wrongful death suits, and protecting artists' rights in their work. Here are the headlines:
The best news was that the fight over NY's ridiculous tattoo rules led to a victory for tattoo artists who worked so hard to change it. Last year, NY Governor Cuomo signed Bill S1421-2015, which required tattoo studios and body piercing studios "to use single-use needles and inks, to obtain consent forms from customers and to maintain customer consent forms for a period of not less than seven years." As I wrote in the earlier post, the definition of single-use ink in the bill is "a sealed and pre-filled package of ink that is only intended for a single use," and based on this definition, tattoo artists would be limited to expensive pre-packaged "ink shot" products with limited color palettes, and arguably lesser quality, rather than maintaining the industry standard of using disposable ink caps, in which bottled inks of any brand are poured into small containers and thrown away after the tattoo is done.
Tattoo artists mobilized to change the law -- those like Michael O'Herien, who held meetings with artists and legislators at his Revolution Tattoo Co. to seek a better drafting of the law, and Bridget Punsalang,whose petition entitled "Change NYS Bill S1421-2015 to allow the use of disposable ink caps in tattooing," circulated across the globe and received the media attention to get lawmakers' attention. Last month, a legal compromise was reached and the law was revised and signed into law. Under the amended law, the single-use ink packets were scrapped and tattooists can continue to pour ink into disposable ink caps. The other mandates, such as single-use sterile needles, essentially put into law what professional studios already practice. Congrats to all those who fought the law and won.
More good news: Virginia Beach loosens its grip on tattoo parlors. According to the The Virginian-Pilot, "In January, the City Council got rid of the rule that tattoo parlors have to be at least 600 feet from a residential district, apartment district or school. But they still must be 600 feet apart from each other and apply for a conditional use permit in the B-2 community business district." The article continues, "Staff initially recommended getting rid of both restrictions - on where they are allowed to be and how close they can be to each other. But planning commissioners had concerns about 'the potential for a proliferation of tattoo parlors/body piercing establishments in any single location.'" Of course, this makes it tougher for those already operating because of increased competition, but generally, getting rid of arbitrary provisions that restrict businesses is a good thing.
Looking at a wrongful death law suit, the sister of an inmate at Georgia State Prison sued Georgia Correctional Health, a contractor that provides health care at the prison, for failing to treat the inmate who died from a severely infected tattoo. Randall Davidson died in February 2015 after he went into severe septic shock and multi-system organ failure due to a tattoo he received from a fellow inmate. The lawsuit states that Davidson sought medical help but was given only anti-inflammatory drugs, not antibiotics needed to treat the infection. The suit also states that, while that Georgia state prisons prohibit inmates from tattooing each other, they commonly tattoo each other in unsterile conditions with improvised needles and ink, leading to high risks of infection. Sadly, it's this type of tragedy and the financial penalties that often follow, that lead to reform. Prison tattooing is common practice around the world. Rather than ignore it, steps could be taken to ensure safer tattooing. Perhaps we can look to models, like this one in Canada, that have tattoo facilities in the prison itself.
On the copyright front, famed tattooer Norm (Eric Rosenbaum) filed a federal lawsuit against McDonald's, stating in the suit that McDonald's "sought to capitalize, and did capitalize, on Norm's artwork and celebrity without his consent or permission, and consciously decided to paper the walls of its restaurants around the world with Norm's name, artwork, signature, trade name, trademark and persona." As a result, the suit claims that "the unlicensed use of that work has cost him several lucrative contracts with other companies and estimates the value of McDonald's unlicensed use and the lost contracts at more than $10 million." My guess is that this case will settle, although I would love to see how the court would handle the appropriation of graffiti and tattoo art. In any case, it's a reminder to companies that its best to work with artists and legally license works than think those artists won't won't assert their rights when companies don't.
Speaking about appropriation among tattoo artists. Colin Dale of Skin & Bone has an interesting essay entitled, "Copycats, Fanboys and Identity Theft: part 1" in which he brings to light his experience of having his work copied -- but by an artist who is more adept at social media than creating original works -- so much so that "it starts to look like he has the original while [Colin is] a fanboy with a copy." I found myself nodding in agreement when reading further on his reaction to the theft:
It is sort of cool when people start thinking that my work is traditional...but it is also personal. When people start posting it as their own or promoting themselves with it that things get messy. The problem is that many people just use google and search "Viking or Polynesian Tattoos" instead of searching "Viking or Polynesian Art" to find the original sources. So their inspiration is already from another contemporary artists work rather than historical sources.The most annoying phrase I hear about this laziness is "imitation is the sincerest form of flattery." That statement itself is lazy. All art is derivative, but the full appropriation and the social media grab for "Likes" of work that is not your own is sad and also actionable. While it doesn't seem that Colin will be filing a lawsuit, I think it's great that he used his platform to bring these issues to light.
More interesting news on the tattoo copyright front, which you know I love as a lawyer and tattoo nerd!
On Monday, a lawsuit was filed in federal court in New York against Take-Two Interactive and other companies associated with the video game NBA 2K16 for reproducing the tattoos of the basketball stars featured in the game series without permission.
The suit was filed by Solid Oak Sketches, a company who licensed the tattoo designs from the following artists who tattooed stars like Lebron James and Kobe Bryant: Justin Wright (LeBron James), Shawn Rome (LeBron James), Tommy Ray Cornett (Eric Bledsoe and Kenyon Martin), Robert Benedetti (Kobe Bryant), and Leslie Hennelly (DeAndre Jordan). More on the licensing deal later in this post.
The lawsuit filing, Solid Oak Sketches v Take-Two, can be found here.
Ok, let me break this down:
While I've been writing about tattoo copyright since 2003, the discussion of tattoos being protected under copyright law didn't really get much buzz until 2011, when the infamous Mike Tyson Tattoo Copyright case was filed. I wrote about that extensively 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. The case, S. Victor Whitmill v. Warner Bros., settled for an undisclosed amount, soon after Judge Catherine D. Perry, who presided over the preliminary injunction phase, stated: "Of course tattoos can be copyrighted. I don't think there is any reasonable dispute about that . . . . [T]he tattoo itself and the design itself can be copyrighted, and I think it's entirely consistent with the copyright law."
Fast forward to July this past summer, when the lawyer for Tyson's tattooer, Michael Kahn, reached out Take-Two Interactive to reach a deal on behalf of the tattooers. As noted in Bloomberg Business:
Kahn offered to drop the threat of legal action against Take Two in exchange for $819,500, covering the use of eight tattoos in the 2014 and 2015 versions of the game, according to a copy of the letter filed with the complaint. The law firm also offered a perpetual license covering 2016 and beyond for $1.44 million.
You can find the letter and the breakdown of the interesting math used to reach these numbers in the exhibits to the lawsuit filing.
I'm guessing, however, that the case will settle as other tattoo copyright cases have.
And then we'll probably see the NBA get after their players to get releases from their tattoo artists to the rights to their tattoos -- just as the NFL did in August 2013.
When artists and athletes come to agreements on tattoo artwork, it can be a win-win, as we saw with quarterback Colin Kaepernick, who got written permission from his tattoo artists to feature his tattoos in the Madden video game franchise. More on that deal here.
So, what kind of deal are we talking about for tattoo artists licensing their art? In the exhibits to the complaint filing, you'll find the licensing agreements between the tattooers and Solid Oak. In them, the artists get 8% of the net earnings of Solid Oak for their designs. I've seen licensing agreements go for more, but it depends on the deals and also how good your lawyer is.
The lesson here is that the rights of tattoo artists are being taken more seriously -- and even more so with every suit filed.
For more on my writing on tattoo copyright in the US check these links:
Photo of Durga tattooing at the the 1st Traditional Tattoo Camp.
The recent tattoo news hit everything from indigenous tattoo practices worldwide to, well, the worst headlines ever...
One of my favorite stories was coverage, including great photos, of the 1st Traditional Tattoo Camp, which took place last month, in Yogyakarta, Java, Indonesia. The event was organized by our friend Durga, who has worked tirelessly on the revival of Mentawai tattoo traditions. Durga and his crew hosted a select group of artists at the camp from around the world in a celebration of tattoo culture. Here's a bit from the Daily Mail article:
The festival earlier this month in Maguwoharjo village in Java's cultural heartland gathered people from across Indonesia and the world at the studio of celebrated Indonesian tattoo artist Durga, a leading figure in the revival. Durga has championed tattoos from the western Mentawai islands, home to a semi-nomadic tribespeople famed for their body art and the practice of sharpening their teeth, which they believe makes them more beautiful.The indigenous practices of Inuit tattooing were the focus of this CBC News article (sent by our friend Brayden Wise). The piece looks at Alethea Arnaquq-Baril's film Tunniit: Retracing the Lines of Inuit Tattoos, which follows her journey to learn about traditional Inuit women's face tattoos before getting tattooed herself. What's particularly interesting is the discussion of Arnaquq-Baril's hesitation to screen her film to non-Inuit audiences for fear of cultural appropriation. Here's more:
Through interviews with elders across Nunavut, Arnaquq-Baril's film describes how the practice of tattooing women, which she says used to be nearly universal, was all but stamped out in just one generation as a result of the concerted efforts of Christian missionaries.
More on Inuit tattooing can be found in Lar Krutak's Tattoo Traditions of Native North America, in which Arnaquq-Baril is also featured.
Samoan tatau is the subject of this OC Register article, which looks at the work of Si'i Liufau, owner of A Town Tattoos, who learned the traditions from the Sulu'ape family -- the name most associated with tatau revival. There's some interesting talk of melding the old with the new:
Instead of using the traditional tools, for health safety Liufau fashions a modern version from stainless steel and plexiglass, which he makes for each customer. It takes about 30 minutes to craft the tool.
I really enjoyed reading how these revivals are taking shape, making it a great tattoo news week!
In other news ...
David Bowie's death on the 10th inspired many tributes to the artist, including tattoos, (like the one below). I posted a couple Bowie portraits on Instagram, and you can find more via #davidbowietattoo.
Forbes covers the recent case that finds tattooing is artistic expression protected by the First Amendment. Check my breakdown of the Buehrle v. City of Key West case.
A slideshow of last weekend's Minneapolis Tattoo Arts Convention can be found on the Star Tribune site.
Finally, some headlines that were so bad, I couldn't ignore them:
* "This British Man Has a Large Rim Job Tattoo on His Back, No Really."
* "NY Mom Arrested After Allegedly Tattooing 'Ride or Die' on 12-Year-Old Son's Hand"
David Bowie tattoo by Chris Jones.
Backpiece by Tim Kern.
Warning: This post will contain a lot of exclamation marks. If you've been reading this blog for a bit, you know how I get giddy when my tattoo passion and legal profession collide! That said, I will refrain from including excited face emojis.
On December 29th, the United States Court of Appeals for the Eleventh Circuit (11th Circuit) ruled in Buehrle v. City of Key West that tattooing constitutes artistic expression protected by the First Amendment and that the City of Key West's ordinance that strictly limits the number of tattoo shops permitted was not "a reasonable time, place, and manner restriction," meaning that the ordinance was not a constitutional restriction on free expression.
So, I'm going to break this case down, but before I do, you may want to first check my post "Federal Appeals Court: 'Tattoos are free speech protected by Constitution'" from September 2010 -- also with a bunch of exclamation marks -- about Johnny Anderson v. City of Hermosa Beach because the Buehrle v. City of Key West decision spends a lot of time quoting that case, as it deals with a ban on tattoo shops opening up in Hermosa Beach, CA.
In my post on the Andersen case, I also talk about that "reasonable time, place, and manner restriction" test, where restrictions on protected speech are permitted if they are "narrowly tailored" to serve the government's interest. There's no argument in either case that the cities have a real interest in regulating tattooing because of health and safety concerns. The argument is whether a total ban on tattooing -- or a highly restrictive ordinance -- is too broad to achieve this interest.
Now, onto the present case...
The Backstory Behind Buehrle
Brad Buehrle wanted to open up shop in the designated historic district of the City of Key West, Florida; however, the City refused to grant him a business license as it prohibits
tattoo shops in the historic district, and allows them only in the General Commercial District as a "conditional
Interestingly, as the 11th Circuit notes, Key West has a long history of restricting tattoo establishments. There was a blanket ban on tattoo shops operating on the island from 1966 to 2007, which, "according to local lore," arose at the request of the US Navy, "fear[ing] that its sailors would obtain ill-advised tattoos."
At the time this case was filed, about four years ago, the City permitted two tattoo businesses to operate in the historic district as "lawful non-conforming uses" -- which actually came out of the settlement of a prior lawsuit that challenged the ban.
Buehrle started his own legal battle against the city, challenging the new restrictive ordinance.
The Legal Battle
Buehrle and his legal team argued that the act of tattooing (not just the tattoo itself) is entitled to First Amendment protection and that the ordinance is an unconstitutional restriction on his freedom of expression.
The City argued that tattoo establishments would adversely impact the "character and fabric" of the historic district and it feared that, as the court wrote, "rash tourists will obtain regrettable tattoos, leading to negative association with Key West." And so more tattoo shops would lead to a bad rep and harm tourism.
[Before we go on with this case, take a moment to Google image search "Key West Spring Break" and you'll easily find negative associations that have nothing to do with tattoos.]
So this case ends up in United States District Court for the Southern District of Florida, and both parties file summary judgment motions (which means they sought a decision on the case without a full trial). The district court concluded that the act of tattooing constitutes protected speech BUT the City's ordinance was content neutral and constituted a reasonable time, place, and manner restriction. Buehrle appealed that decision, which leads us to this decision by the Court of Appeals for the 11th Circuit.
The Court of Appeals Decision
Here's where it gets good and the exclamation marks come in ...
The 11th Circuit says, yup, no argument here that tattooing is artistic expression protected under the First Amendment. Woohoo!
Then they cite Anderson v. City of Hermosa Beach, which I mentioned before. Here's what they wrote (with the legal citations removed):
We join the Ninth Circuit in holding that the act of tattooing is sheltered by the First Amendment, in large part because we find tattooing to be virtually indistinguishable from other protected forms of artistic expression. As our sister circuit observed, "[t]he principal difference between a tattoo and, for example, a pen-and-ink drawing, is that a tattoo is engrafted onto a person's skin rather than drawn on paper. . . . [A] form of speech does not lose First Amendment protection based on the kind of surface it is applied to." [...] ("[T]he tattoo cannot be created without the tattooing process. . . . Thus, as with writing or painting, the tattooing process is inextricably intertwined with the purely expressive product (the tattoo), and is itself entitled to full First Amendment protection.")
You betcha! There's actually some cool discussion about tattooing as an art form in this case, which makes reading the decision even more enjoyable.
Ok, then it talks about how you can regulate this expression, but only if the regulation "(1) is justified without reference to the content of the regulated speech, (2) is narrowly tailored to serve a significant governmental interest, and (3) leaves open ample alternative channels for communication of the information."
Buehrle never argued that the ordinance wasn't content neutral, so the court just had to determine whether the City met the other two tests. The 11th Circuit found that the City failed to demonstrate that the ordinance serves a significant governmental interest, and so it didn't even address the part about alternative channels of communication.
Not only that, court gives the City a smackdown! It called out the City, saying that a municipality "cannot get away with shoddy data or reasoning." Then it points out that "the only support for the City's claim that the ordinance serves
significant governmental interests consists of statements by Donald
Craig, the City's Director of Planning." That's the guy who said that tattoo shops would ruin that "character and fabric" of
the historic district, especially when those crazy spring break kids get shitty tattoos and never want to be reminded of their unspeakable time in Key West again! I'm paraphrasing. Oh, and Don also noted that Key West successfully prohibited tattoo establishments in the historic district for approximately forty years -- so what's the big deal now, Judgie?!
That didn't fly. Here's what the court said:
Particularly glaring is the lack of evidentiary support for the City's assertions concerning tattooing's purported effect on tourism. The City pointed to no study indicating that the operation of tattoo establishments in the historic district would impact the tourism industry. The City conducted no investigation and made no findings. It relied upon no expert testimony, findings made by other municipalities, or evidence described in judicial decisions. It failed to muster even anecdotal evidence supporting its claims. The closest the City came to presenting evidence on the impact on tourism was a passing reference to a few lines of a Jimmy Buffett song. And we are unsure whether even that reference fully supports its position.
Turns out the City referenced "Margaritaville" -- twice! -- to support the claim that drunk tourists are likely to get, then regret, tattoos if more tattoo shops are in the historic district. In a gorgeous footnote, the court states that, in the song, Buffet "seemingly far from suffering embarrassment
over his tattoo--considers it 'a real beauty.'" "The First Amendment requires more [than Jimmy Buffet]," wrote the court.
Therefore, the 11th Circuit ruled that the district court "erred when it concluded that the City's ordinance restricting the number of tattoo establishments in its
historic district was a reasonable time, place, and manner restriction
on protected expression."
Another win for tattooing!
What's particularly great about this case is that it addressed a law restricting tattoo shops in Key West rather than a total ban as in Hermosa Beach. So, municipalities that think they're going to play smart by claiming a law is not a ban but just a benign restriction, may need to think again.
I also want to point out that tattooers like Buehrle, Anderson, Ryan and Laetitia Coleman, and Ronald P. White have spent a lot of time and a lot of money challenging laws that restrict tattooing. As a community, as business owners, tattooers could have an even greater impact by pooling resources and working together to fight these restrictions.
Prior posts on tattooing and the First Amendment:
Last week, a number of people sent me the link to the Kotaku.com article by Brian Ashcraft entitled "Japan Is Trying To Destroy Tattoos." The article makes serious claims about hardships facing tattoo artists in Japan today, so I wanted to reach out to friends who work in the country to get their perspective. Turns out that Ashcraft (who is writing a book on Japanese tattooing) is on the money in stating that the Medical Practitioner's Law enacted in 2001 -- which mandates that "only licensed health care providers could pierce the skin with a needle and insert ink" -- is now being enforced against tattoo artists, although it was originally designed to address issues with permanent makeup application.As Ashcraft also notes, one Osaka tattooer is fighting back. The Asahi News reported that the 27-year-old artist and studio owner known as Taiki was arrested for allegedly violating the Medical Practitioner's Law. Instead of paying the fine imposed on him, which Ashcraft says is 300,000 yen (about $2,445 USD), Taiki is challenging the law in the Japanese courts, "posing the question as to whether or not his job is a crime."
This past April, Osaka's biggest tattoo convention, was suddenly canceled a week before it was to be held. Some after, several tattoo studios in Osaka were apparently raided, and in August NHK reported, five tattooers were arrested for "tattooing 11 people without a physician's license." Yes, it actually said that. The tattooers were arrested because they were not doctors.
A friend of Taiki's created a Facebook page called Saving Tattooing in Japan to inform people of the case. Here is the English language FB page. On that page is a link a survey asking people's thoughts on tattoos in general and in Japan. The goal is to share the results of the survey and likely support the challenge to the law.
I'm hoping that the challenge is successful and Japanese artists no longer have to fear arrest for their craft. As many artists I've spoken to have said, the crackdown this past year could have the very real effect pushing the industry underground and even sending artists abroad, depriving the country of the stellar talent across Japan.
On this day in 1891, Samuel O'Reilly patented his electric "tattooing-machine", unknowingly creating a big future for quick and easy bad tattoo decision making. If there was a tattoo version of Back to the Future, taking out O'Reilly in the past could mean that young girls don't get dumb Rihanna tattoos today. Something to think about.
In honor of this legal anniversary, I picked some headlines that touch upon tattoo law:
Tattoos are often the source of controversy at criminal trials -- particularly when they are sought to be used as evidence of guilt. I wrote a post last year -- "Tattoos at Trial" -- noting a number of cases that have dealt with this issue.
In recent news, a teardrop tattoo led an innocent man to 16 years in prison for multiple rape charges as victims described their attacker as having the same tattoo. Recently exonerated, Luis Lorenzo Vargas said that he got his now faded teardrop tattoo when he was 13 to "fit in" with neighborhood kids. Vargas appealed his conviction a number of times but "it was not until the California Innocence Project urged authorities to test DNA evidence that he was vindicated."
On the flip side, a judge in Maine decided that a photo of a victim's tattoo would not be shown to jurors as it could prejudice jurors. The victim, Ricky Cole, had a "RIP" tattoo across his neck. Lawyers for Jason Cote, the man accused of bludgeoning Cole with a pipe, argued that this tattoo put Cole in fear of his life. The judge ruled that the photo wouldn't be used because "it implied Cole's involvement with the criminal justice system and would suggest to the jury that Cole had a propensity to violence."
In Germany, prosecutors are investigating whether a man violated the country's ban of the public display of Nazi symbols by appearing at a swimming pool with a tattoo of the Auschwitz death camp on his back. According to the Times of Israel, the prosecutors' spokesperson Lolita Lodenkaemper said that "another bather took a photo of the tattoo, which also carried the slogan from the Buchenwald concentration camp's gate, 'Jedem das Seine' -- 'to each his own' -- at a pool in Oranienburg, north of Berlin, on November 21. She says that having such a tattoo is legal but showing it publicly could be considered incitement."
Photo of Whang-Od Oggay by Lars Krutak.
I had to weed through the muck of dumb celebrity tattoo gossip and features focusing on the bad rather than beauty of tattooing, but I did come up with some gems. I also threw in a few that made me mad but were noteworthy. Here we go...
One of my favorite recent features was this Guardian photo show "What lies beneath: people with full-body tattoos bare all." Cheezy title, but great photos of a diverse group of collectors, including our friend Drew Beckett.
I was also so excited to read that the Philippines' oldest living mambabatok (tattoo artist), Whang-Od Oggay (shown above), has been nominated as a "National Living Treasure or Gawad sa Manlilikha ng Bayan (GAMABA)" for her role in perpetuating the traditional art of Kalinga tattooing. I first learned of Whang-Od through Lars Krutak's writing "The Kalinga Tattoo Artist of the Philippines," and through the work of the Tatak Ng Apat Na Alon Tribe, who are reviving the ancient tattoo arts of their Kalinga ancestors here in the US. Hers is an amazing story and truly deserving of such an honor. Also check this video profile on Whang-Od (from 2013).
Lars' work is also discussed in the Smithsonian Science News article "Is tattoo ink safe?" The article explores a paper that Lars co-authored entitled "A medical-toxicological view of tattooing," which looks at the toxicological risks of the ingredients used in tattoo inks and also what happens to the pigments during tattoo removal. Lars is quoted in the article explaining further:
There are no regulatory requirements concerning the production and sterility of colorants, which can carry multi-resistant bacteria and carcinogens and trigger serious allergic reactions and viral infections. [...] New research is needed to contribute to the future development of safe tattooing, and this article is a first step in the right direction.In Australia, plastic surgeons & tattoo removal specialists want greater regulation of the tattoo removal industry, especially considering the damage that is being done by those with a laser machine and little experience.
On the US legal front, a federal judge tossed a lawsuit challenging the visible tattoo ban of the Chicago Police Department. In July, three Chicago police officers, who served in the military and have symbolic tattoos, filed the suit claiming that the ban violates their First Amendment rights of freedom of speech and expression. However, U.S. District Judge Charles P. Kocoras ruled that "the city's goal of having a professional-looking police force trumps the officer's desire to express themselves by keeping their tattoos visible while on-duty." We've been seeing more and more challenges to police department tattoo policies, with different results, but it appears that the legal tide is still with upholding these bans.
It was painful for me to read the TechInsider article on "trendy sacred geometry tattoos" -- which is anything but sacred. It features work from some good artists, but throwing it together in an Instagram Listacle format was tacky and lacked respect for patterns that should be taken as something more than the next cute Pinterest tattoo pick.
Thankfully, I felt better reading this profile and Q&A with Paul Slifer, the Massachusetts native who owns Red, Hot and Blue Tattoo in Edinburgh, Scotland. A few years ago, when I was visiting that fabulous city, I stopped by the studio, and they were really warm and welcoming. Plus the artists there know how to put on a beautiful tattoo. Check 'em.
One of the biggest stories in recent headlines was the tattoo of Justin Trudeau, Canada's new Prime Minister, which is a Haida-inspired raven with a globe as part of the body. As noted by Radio Canada International, the tattoo was done by Robert Davidson, an artist of Haida and Tlingit descent. Interestingly, the article brings up cultural appropriation and tattoos:
There has been controversy in North America over cultural appropriation-the fashion industry and non-natives using aboriginal symbols. But Peter Lantin, president of the council of the Haida Nation, told the National Post "when Justin Trudeau visited...again in 2013, he seemed to take an interest in the culture and, of course, his father was technically family."Read more on the issue of appropriation and Haida tattooing here. As a follow up to the Trudeau tattoo story, the BBC has this article on tattoos of other world leaders.
Aaaand let's wrap up this news review with some quick & dirty links:
* An Australian man with a Hindu goddess tattoo angered a crowd in Bangalore, India.
* Patrick Thomas of OC Tattoo on Pet Portraits, Graphic Design, and Tattooing his Sister.
* "My Life with a Face Tattoo" is an interesting BBC video profile of one Dundee man.
* And the most tattooed city in the UK is ...
Photo by Edgar Hoill.
Tattoo artists on TV have not just shone a spotlight on the artistry within the industry but also some of its business practices. Putting on a pretty tattoo, pocketing the cash for it, and staying under the government radar doesn't work any more, at least not for very long, and especially not for those with sizable client lists. It's not just about complying with health & hygiene laws and making sure to pay the tax man. Studio owners and individual artists need to be aware of the full spectrum of government regulations that impact tattooing. [I won't even get started about artists not having health insurance.]
One issue that's been a topic of increasing discussion is whether tattoo artists are independent contractors or employees -- a question that has a huge impact on costs and benefits to studio owners and individual artists and also legal liabilities. I've gotten a few calls from tattooers with tons of questions because they have gotten calls from their state labor departments with their own list of questions. [I don't practice employment law and so I don't advise on it. And this post definitely shouldn't be taken as legal advice.]
Insurance companies are also paying more attention to these employee issues in the industry. I was sent a link to an article, written by attorney Einhorn Harris, that talks about the tattoo artist as employee or independent contractor question from Professional Program Insurance Brokerage (PPIB) (who are Needles & Sins sponsors). PPIB offers workers compensation coverage and wanted to put the article on my radar. Although published in 2013, it is still a good read for how it breaks down these labor issues in the tattoo industry.
Harris explains how tattoo shop owners are responsible for withholding income taxes, withholding and paying Social Security and Medicare taxes, and paying unemployment tax on wages paid to an employee. However, if the tattoo artists who work at the studio are considered independent contractors, generally, the responsibility to report income and pay taxes falls on them and not the studio owner. The IRS doesn't take too kindly to having businesses misclassify their employees, so tattoo studio owners who do so may find themselves staring down an audit and some hefty penalties. Determining that proper classification really depends on the facts and circumstances surrounding each shop, but the key factors are about control. Here's how Harris sets it out:
1. Behavioral control - Which, for Tattoo Shops, would include such inquires as whether the Tattoo Shop Owner controls, or has the right to control, what the Tattoo Artist does and how the Tattoo Artist does his or her job. For example, when to work, where to work, what tools or equipment to use, what routines or procedures must be used, and requiring use of specific tools, equipment and supplies;
2. Financial control - Are the business aspects of the Tattoo Artist's job controlled by the Tattoo Shop Owner? Such as, how is the worker paid, whether expenses are reimbursed, and who provides the tools, equipment and supplies; and
3. Relationship of the parties - Are there written contracts between the Tattoo Shop and Tattoo Artist? are there employee type benefits? (insurance, vacation pay, etc...), what is the intent of the parties and how do they perceive their business relationship to each other?
Based on these, and other factors, if artists are employees, they can be covered by workers' compensation. Taking the definition from NY's Workers' Comp Board, "Workers' compensation is insurance that provides cash benefits and/or medical care for workers who are injured or become ill as a direct result of their job. Employers pay for this insurance, and shall not require the employee to contribute to the cost of compensation. Weekly cash benefits and medical care are paid by the employer's insurance carrier, as directed by the Workers' Compensation Board. The Workers' Compensation Board is a state agency that processes the claims."
Tattooing requires a physical ability to do the job; when hands, eyes, and backs are out of whack, tattooers may not be able to make a living, so being protected by this type of insurance can be a pretty big deal.
In the end, studio owners and artists should be having serious conversations about their work relationships. It may not make for flashy reality TV, but it can avoid real life drama in running a business.
The recent tattoo news was a blend of serious, sweet and silly. Here's the run down:
Ten days ago, NY Governor Cuomo signed legislation that requires tattoo studios and body piercing studios "to use single use needles and inks, to obtain consent forms from customers, and to maintain customer consent forms for a period of not less than seven years." The new law takes effect in 120 days from the signing. In our Needles & Sins Facebook group, Ricky Wong posted this Daily News article on the law, which elicited some great comments. Jœl B Van Goor joked, "I've been using the same needle since 2006 and I ain't about to change it now," and Lawrence Mascia made me giggle when he wrote, "Here I was thinking I was special when my tattoo artist would spit on the needle before hand to clean it." More seriously, Paul Roe noted that it does not state "sterile" inks and offers definitions open to misinterpretation. Pat Fish also shared:
The pre-sterilized single use needle set-ups, great, got that. But the single-use packaging of INK is the big threat. Over the years several suppliers have tried marketing inks this way, without great success, since the tiny caps of pre-packaged ink were prohibitively expensive. It is all about lawyers wanting documentation of the products used so they have someone to go after if there is a problem with healing. If this really does go into effect it will set an industry-threatening precedent.Personally -- and setting aside that not all lawyers are evil (ahem!) -- I think it's a poorly drafted bill, which was likely crafted without serious consultation from the tattoo industry. Regulations protecting the safety of tattoo clients are necessary and important, but they should reflect the realities of tattoo practice & industry standards and not be pushed through because of some knee-jerk reaction to misinformed health scares, or anger that some politician's daughter got a Snoop Dog tribute tattoo, or because a manufacturer can bank on it. The tattoo community needs to remind politicians of our voting power and resources, and that partnering with the industry on laws impacting it should be a necessity and not a courtesy.
On a lighter note, Paul shared this great piece on 83-year-old Doc Price of Plymouth, England, who will be judging the Plymouth Herald's Best Tattoo contest. Doc told the Herald that he believes himself to be the oldest living tattoo artist in the country and has tattooed more than 40 acres of human skin during his lifetime. He also shares some stories like a time when a disturbed British Intelligence worker entered his shop with a loaded weapon wanting a scar tattoo on his face, or his laugh over the Kanji tattoo that read "Windows 7" instead of a girlfriend's name on an unsuspecting tourist.
In a piece that hit close to home, a woman with vitiligo -- a chronic skin condition that causes the loss of skin color in blotches -- gets a tattoo to address stares & bullying. I actually have vitiligo on my face and hands, but because I have very fair skin, the loss of pigment isn't as pronounced as with those who have darker skin tones. Still, I was teased as a kid, and as an adult, it was suggested to me that I could have those white patches of skin tattooed to match my normal skin coloring. But, like Tifanny Posterar (another Brooklyn girl), I've embraced what I was born with and prefer to tattoo myself as a way to celebrate, rather than to hide. Tiffany has taken it further by getting the words "It's called vitiligo" tattooed across her forearm to educate those on the disease. More of her story in the article.
Quick & dirty links:
* Ricky & Pinky's tattoo parlour: 40 years of inking Hong Kong. Some great photos, including the top pic above.
* OC Weekly profiles Jess Yen of My Tattoo.
* "The 17 coolest tattoo artists you need to follow on Instagram." A good list. Although there are hundreds I'd add.
* Marine Corps to update its tattoo policy after review.
* Three held in Kuwait for illegal tattoo center.
* Will Smith Tattooed Suicide Squad Co-Star Joel Kinnaman.
* Photos from the 2015 Seattle Tattoo Expo.
* Men lose girlfriends after getting penis tattoos on their thighs. And I'll just leave it at that!
The tattoo news was all over the place this past week, from bans on tattooed women breastfeeding to government tracking of your tattoos. But first, let's start off with something fun ...
... this sweet fix to a bad Pokemon tattoo. Pretty adorable.
On a more serious note, as was brought up in our in our Needles & Sins FB group page, a 20-year-old mother in New South Wales, Australia, was banned by the Federal Circuit Court from breastfeeding because she had recently been tattooed. The ban was based on the fear that she might transmit a blood-borne disease such as hepatitis or HIV to the baby. The woman was tested and no such disease was found, BUT, the judge decided to stop her from breast feeding anyway! [The father of the baby is the one who brought it to the court's attention during a bitter custody battle.] Thankfully, the Family Court unanimously overturned the decision, stating, "Judges must not mistake their own views for being either facts not reasonably open to question or as appropriately qualified expert evidence." If this wasn't overturned, it would've made for some scary precedent, with judges ruling what tattooed women can do with our bodies (and babies) based on prejudice and erroneous info. Phew!
Another heavy news item was this flashy headline: "The government's high-tech plan for identifying you based on your tattoos." The National Institute for Standards and Technology (of the US Commerce Dept.) held "a 'challenge' in which groups faced off to see who could deliver software and algorithms that identified tattoos most accurately." According to the Washington Post, "some of the systems had 'hit rates well above 90 percent' in some of the tests, like basic tattoo detection and identification over time as well as matching up a small piece of a tattoo to an image showing the the whole thing," but it was more difficult to match up sketches and digital graphics with real tattoos to identify shared elements across different tattoo designs. As the article notes, tattoos images are already part of the FBI's Next Generation Identification database; however, it "relies on written descriptions of tattoos to help identify suspects."
In a more obvious headline: "Adult Man with 29 Miley Cyrus Tattoos Suddenly Realizes He Does Not Want 29 Miley Cyrus Tattoos." Try not to gasp in shock.
In Japan, many bathhouses have denied tattooed people entry, largely because of tattoo's association with the criminal underworld; however, with the mass popularity of the art today, the Japan Tourism Agency wants to deal with such policies, which can turn off and turn away tattooed tourists. The Japan Times reports that "the agency started distributing a questionnaire to 3,700 inns and hotels with public baths, asking them why and how they turn away tattoo-bearers and whether they have run into trouble with guests over the policy." What allegedly sparked this whole thing: after learning that a Maori woman was denied entry into a bathhouse in January, a major hotel operator stated that it would distribute stickers for tattooed guests in October to use them to cover their tattoos. Might as well wrap me up in a full body adhesive if that's the case.
And finally, there's this sweet piece about about 94-year-old Gwladys Williams who just became the oldest woman in the UK to get a tattoo. Never too old!
Swastika tattoo on Guido Baldini by Thomas Hooper.
The recent tattoo headlines had some juicy news items, including debate over the use of the "gentle swastika," battling tattoo conventions in San Antonio, tattoo ink regulation in Europe, a new tattoo museum in New Orleans, a Jesus tattoo ad court case, and another reason not to get your girlfriend's name tattooed on you. Here's more:
In Santa Fe, New Mexico, there's been some controversy over one tattooer's use of the swastika in his artwork. In KRQE News' piece "Tattoo artist defends swastika-Zia design," there's video footage of tattooer Guido Baldini discussing how he wants to revisit the positive and auspicious symbolism behind the swastika and reclaim it from being a mark of Nazi-driven hate. Baldini also notes in the article that the symbol has history with Native American culture in the southwest, explaining that the symbol is referred to as "the weaving log or whirling log." In essence, his goal is change people's minds by sparking conversation -- even heated debates -- in the same vein as the forefather of the "gentle swastika" movement, ManWoman. It's an interesting read and watch.
Also seeking to offer some history lessons, although more contemporary ones, The New Orleans Tattoo Museum & Studio hosted its grand opening March 21st, and already has been featured in various press outlets, including the Gambit and the New Orleans Advocate. The museum is a partnership between 40-year tattoo veteran "Doc" Don Lucas and fellow tattooer and history buff Adam Montegut. They will be tattooing in the back of the 2,000 square foot space, while the front-end gallery space will house tattoo memorabilia, classic flash, machines, books and research materials. The space is also slated for artist talks and other events. The Gambit article shares some of Lucas' tattoo lessons:
Lucas says New Orleans' port city status was pivotal in bringing tattoo artists to the city, though the often transitory, traveling roadshow of early 20th-century tattooists and their shops largely is undocumented. [...] Lucas estimates there were 150 traveling artists by the turn of the century, and nearly one artist for every major city.
On the legal front, the "Jesus Tattoo" advertisement, which I wrote about back in 2013, was the subject of a federal appeals court case, in which the people behind the ad sued a Texas school district because they wouldn't display the ad on the video scoreboard of its football stadium. Here's why Little Pencil LLC v. Lubbock Independent School District is particularly interesting: It's not just an issue of the First Amendment's prohibition against government establishment of religion. The school district also argued that they didn't want to display the ad because the tattooed Jesus pic would violate its policy against visible tattoos. The appeals court upheld the lower court's ruling that the school district's tattoo restriction rationale for rejecting the ad was "reasonably related to legitimate pedagogical concerns." What that could mean is the school has a right to ban any ad with tattoos because it goes against the school's policy of mere mortals showing ink. So maybe that could apply to athletic gear ads that feature tattooed ballers!
In European tattoo law news, the EU Commission is mulling over action on tattoo inks, assessing whether there should be some European-wide rules governing them, in addition national action that some European countries have taken to regulate tattoo pigments. I've been speaking with people involved in these regulatory discussions, so watch out for a detailed post on subject coming up.
Ok, I'll stop geeking out over the tattoo law stuff. Moving on...
In this article entitled "Back-To-Back SA Tattoo Conferences Expose Rift," there's talk of the beef behind competing shows in San Antonio, Texas. The 12th Annual Slinging Ink Tattoo Expo was held this past weekend (see coverage here), and next weekend the Texas Tattoo Jam will also take place in San Antonio. Seems to be based on a lot of personal bad blood -- which isn't uncommon in other cities' competing shows as well. Part of me wishes conventions were held only a few times a year -- as big international community events -- rather than watered down weekly gigs. There's also a related article that's worth a read: "Veteran Artists Lament SA's Tattoo Scene Turning Into Competitive Industry." It hits on the "art versus craft" debate in tattooing.
Finally, there's this piece: "Man says ISIS tattoo led to him getting fired." Isis was his ex's first name. Another reason why it's not a good idea to get boyfriend-girlfriend tattoos, kids!
When my tattoo world and legal world collide, in some very powerful ways, I want to share it with you.
I attended NYU Law School's screening of Gideon's Army, a film that takes a tough look at the American criminal justice system through the lives of three young public defenders in the the South who struggle with an overwhelming case load, long hours, and very low pay in order to ensure that those who are poor and cannot afford a lawyer in a criminal trial have the right to representation -- a right guaranteed by the 6th Amendment of the US Constitution and the 1963 case of Gideon v. Wainwright, in which the Supreme Court ruled that defendants in criminal cases have the right to legal representation in state courts, and if they cannot afford a lawyer, the state would have provide one. Public defenders are such lawyers.
Gideon's Army, brilliantly directed by Dawn Porter, is not a documentary where tattoos play heavily. This film, at its core, is about how some of the greatest civil rights abuses lie in a broken criminal justice system, as noted by Jonathan Rapping, who heads the Southern Public Defender Training Center, now known as Gideon's Promise.
However, one of the most powerful moments in the film comes in the form of tattoos. As seen in the short clip below (which is not all entirely in the film), Travis Williams, a public defender in Hall County, Georgia, calls himself and other public defenders who fight for the constitution a "True Believer" -- words he has tattooed on his back. Along with that tattoo are the names of the clients whose cases he has lost: 8 at the time of this film (which was filmed over 3 years). Travis had won 24 jury trials. Travis says that he wears the names of those clients who have gone to jail as a constant reminder to be vigilant when defending the accused because a person's freedom is in his hands. And when he loses, another client's name goes on his back, so that he always carries that weight.
There's also a key moment in the film where a client of Brandy Alexander, another Georgia public defender, is found not guilty by a jury because his prominent tattoos were not part of the witness identification of the suspect -- an interesting example in which tattoos helped, rather than hindered, the defendant in a criminal trial.
I highly recommend seeing the film, beyond the short tattoo scenes, because it tells truly compelling stories about those wrapped up in a continuing civil rights fight that is a travesty in our country today.
Check more videos on the film here. You can also watch it in its entirety on Netflix, Amazon Video, and iTunes, among others.
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: