The Bloomberg BNA Intellectual Property Blog is the home of the "Do You Copy?" podcast and offers links to selected articles by the BNA IP team, which is accessible to both subscribers and non-subscribers as well as commentary and analysis exclusive to this blog.
Thursday, August 16, 2012
by Rebecca E. Hoffman
Richard Bingler recently posted about the zealous protection of the Olympic rings and related marks by the London Organising Committee on the Olympic and Paralympic Games. This got me thinking about tattoos. I noticed a number of Olympic athletes sporting these upon various parts of the body, proudly displayed during the games. Some athletes are known to run to the tattoo shop the moment they find out they are on an Olympic team. Potential copyright and infringement issues came to mind.
A casual perusal of the internet will lead a viewer to many images of tattoos worn by Olympic athletes, and many of them incorporate protected marks, such as Olympic symbols: For example here, here, and here.
Looking into the intellectual property issues surrounding tattoos led me to a blog post (as a guest on BMEzine.com, which is everything "body modification") by attorney and "tattoo nerd" Marisa Kakoulas in 2003. Kakoulas is the editor-in-chief of needlesandsins.com, a "blog focusing on tattoos, tattooing, visual art, music, grafitti, culture and more."
Kakoulas is working on a book called Tattoo Law. When she asked those in the "body mod" industry what they thought of the idea of copyright lawsuits for infringement of tattoo designs, it seemed many thought that bringing lawyers into their underground lair would not be desirable. Tattooing often involves sincere-flattery imitation, and the unwritten etiquette rules generally work without all that messy legal stuff, they agreed.
Pat Fish told Kakoulas:
Tattooing as an artistic culture is highly derivative and once an image is out in the community it is fair game for reproduction. We take art from all cultures and all styles and transform them into skin art. It is impossible to make two absolutely identical tattoos, and even if the client asks for a copy they will get their artist's version of it, based on subtle changes to fit their body and the artist's competence.
It reminds me of the attitude surrounding the Grateful Dead, who always allowed concert-goers to record their performances, encouraging an entire subculture of "tape trading." The Dead knew they would still sell tickets and official releases, and that those fans with scruples (most of them, hopefully) would not attempt to profit from these recordings (and, if they did, would ultimately be shut down by all the scrupulous ones).
Piercer Martin McPherson told Kakoulas:
Karma can be a wonderful thing. Artists who rip off and steal from others usually have other faults that are easier for the public to identify and latch on to. Those "artists" will usually find themselves holding the short end of the stick as other reputable and true artists surround them and take their business.
Kakoulas was able to get some insight into possible legal theories and remedies for infringement of tattoo designs, but even though one can always sue, the consensus was that it was unlikely to happen. Fish recommended that Kakoulas support the legal side of things by creating a client release form that would hold up in court. Kakoulas thought such a form could permit the client to attest:
I have not provided the tattooist with copyright protected work. If so, I agree to indemnify [the tattoo shop] for any damages and legal costs arising out of an infringement law suit.
As for trademarks, Kakoulas noted that the use of a commercial mark in a tattoo is unlikely to mislead those viewing the tattoo into thinking that the person is affiliated with the brand. She mentioned the one tattoo that has itself been registered with the Patent and Trademark Office (at least, as of that writing), Elayne Angel's angel wings, which cover her entire back. Her purpose in obtaining the registration was to be able to prevent others from using that design—which had acquired distinctiveness and connection to Angel and her business—in advertisements for other body piercing services or tattoo shops.
Although Angel did not register her tattoo for copyright protection, she expressed her disdain for those who would copy her particular design.
In my opinion an ethical artist won't attempt an exact replica. … They should work with the client to customize the design. There are many possibilities for wings.
To Angel's chagrin, people do feel the need to copy her ink instead of coming up with their own personal take on the design. However, she's unlikely to see most of them.
In the film The Hangover Part II, many saw the scene in which Ed Helms wakes up with a tattoo on his face. The tattoo appeared to be a copy of the one S. Victor Whitmill had applied to Mike Tyson's face. Whitmill sued Warner Bros. for misappopriation of his original artwork, and attempted, unsuccessfully, to block the release of the film. A preliminary injunction motion was denied just days before the film was scheduled for release, and the parties have since settled. Maybe Universal or Paramount would like to test the issue next? I'm curious.
Kakoulas made a point of distinguishing "tattoo flash" from an actual tattoo on a person. Tattoo flash are sheets with designs for tattoos. They are used for display in a tattoo studio or sold, permitting purchasers to use that design, but only for themselves.
Other problems can arise with tattoos, such as when your tattooist outs himself as someone who cannot spell. However, Terri Peterson, the torch bearer who bears this misspelling for life, said she thinks of it as "unique." It is certainly a better conversation piece than that old-fashioned five-ring design.
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