Case Western Reserve University School of Law Scholarly CommonsFaculty Publications2013Tattoos & IP NormsAaron K. PerzanowskiCase Western University School of Law, akp73@case.eduFollow this and additional works at: https://scholarlycommons.law.case.edu/faculty_publications Part of the Intellectual Property Law CommonsRepository CitationPerzanowski, Aaron K., "Tattoos & IP Norms" (2013). Faculty Publications. 47.https://scholarlycommons.law.case.edu/faculty_publications/47This Article is brought to you for free and open access by Case Western Reserve University School of Law ScholarlyCommons. It has been accepted for inclusion in Faculty Publications by an authorized administrator of CaseWestern Reserve University School of Law Scholarly Commons.
ArticleTattoos & IP Norms †Aaron PerzanowskiIntroduction ............................................................................... 512I. A History of Tattoos .............................................................. 516 A. The Origins of Tattooing ......................................... 516 B. Colonialism & Tattoos in the West ......................... 518 C. The Tattoo Renaissance .......................................... 521II. Law, Norms & Tattoos ........................................................ 525 A. Formal Legal Protection for Tattoos ...................... 525 B. Client Autonomy ...................................................... 532 C. Reusing Custom Designs ......................................... 539 D. Copying Custom Designs ........................................ 541 1. Defining Copying ................................................ 542 2. Detection & Enforcement .................................. 549 3. The Harms of Copying ....................................... 554 E. Copying Flash .......................................................... 557 F. Copying Other Visual Art ....................................... 560III. Explaining Tattoo Norms .................................................. 567 A. Tattoo Culture .......................................................... 569 B. Tattoo Economics ..................................................... 575 1. Norms as Collective Self-Interest ..................... 577 2. Norms as Exclusionary Practices ...................... 581IV. Lessons from the Tattoo Industry ..................................... 584 A. The Role of Non-Legal Incentives ........................... 584 B. Customization & Service ......................................... 587Conclusion .................................................................................. 590 † Associate Professor, Case Western Reserve University School of Law.Thanks to Dave Fagundes, Mike Madison, and Pam Samuelson for helpfulcomments. This article also benefitted from discussions at the IntellectualProperty Scholars Conference at Stanford Law School and workshops and col-loquia at Case Western Reserve University School of Law, University of AkronSchool of Law, University of Notre Dame Law School, Wayne State UniversityLaw School, and Whittier Law School. Copyright © 2013 by AaronPerzanowski. Reuse of this article is permitted under the terms of the CreativeCommons Attribution 3.0 license, the full terms of which are available athttp://creativecommons.org/licenses/by/3.0/legalcode. 511
512 MINNESOTA LAW REVIEW [98:511 INTRODUCTION Twenty-one percent of adults in the United States—more 1than sixty-five million Americans—have at least one tattoo. 2For those under age forty, that percentage nearly doubles. Notsurprisingly, the tattoo business is booming. By some esti-mates, the U.S. tattoo industry generates $2.3 billion in annual 3revenue. Once the mark of sailors, convicts, and circus per- 4formers, the tattoo has infiltrated mainstream society. Despite its countercultural origins, the tattoo industryshares much in common with other, more familiar creative in- 5dustries. Fundamentally, it capitalizes on market demand for 6original creative works. Yet as public goods, the value of those 7works is readily appropriable through copying. Predictably,copying is both a practical reality and a source of concern with- 8in the industry. But unlike their counterparts in most othercreative industries, tattooers nearly uniformly reject formal le-gal mechanisms for adjudicating claims over ownership and 1. See One in Five U.S. Adults Now Has a Tattoo, HARRIS INTERACTIVE(Feb. 23, 2012), http://www.harrisinteractive.com/vault/Harris%20Poll%2022%20-Tattoos_2.23.12.pdf. 2. See Tattooed Gen Nexters, PEW RESEARCH CTR. FOR THE PEOPLE &THE PRESS (Dec. 9, 2008), http://pewresearch.org/daily-number/tattooed-gen-nexters (noting that 36% of adults between eighteen and twenty-five and 40%of those between twenty-six and forty currently have, or previously had, a tat-too). 3. Max Chafkin, King Ink, INC. (Nov. 1, 2007), http://www.inc.com/magazine/20071101/king-ink.html. This estimate, based on 2007 data, likelysignificantly underestimates current industry revenue. 4. In its modern form, “a tattoo is created by injecting ink into a person’sskin. To do this, an electrically powered tattoo machine, often called a gun,moves a solid needle up and down to puncture the skin between 50 and 3,000times per minute. The needle penetrates the skin by about a millimeter anddeposits a drop of insoluble ink into the skin . . . .” Anderson v. City of Hermo-sa Beach, 621 F.3d 1051, 1055 (9th Cir. 2010). 5. Cf. Ivan Quintanilla, Tattoos Through Time: A New Museum for Am-sterdam, N.Y. TIMES, Jan. 10, 2012, 6:00 AM, http://www.intransit.blogs.nytimes.com/2012/01/10/tattoos-through-time-a-new-museum-for-amsterdam/(discussing an Amsterdam museum opening dedicated exclusively to tattooart). 6. See generally David Cummings, Creative Expression and the HumanCanvas: An Examination of Tattoos as a Copyrightable Art Form, 2013 U. ILL.L. REV. 279 (2013) (arguing that tattooers’ work is capable of satisfying thestatutory requirements for copyrightability). 7. Id. at 307. 8. See Interview with Subject 2, Compiled Transcripts with AnonymousTattooers at 19 (May 5–June 1, 2012) (on file with author).
2013] TATTOO NORMS 513 9copying. Although tattoos fall squarely within the protectionsof the Copyright Act, copyright law plays virtually no part in 10the day-to-day operation of the tattoo industry. Instead,tattooers rely on a set of informal social norms to structure cre-ative production and mediate relationships within their indus- 11try. Following in the tradition of earlier scholarship exploring 12the intersection of intellectual property law and social norms,this Article sets out with three objectives: to provide a descrip-tive account of the norms related to creative production withinthe tattoo industry; to explain both the industry’s choice toforego formal assertions of legal rights and the particular con-tent of the norms it has embraced; and to consider the implica-tions of this case study for intellectual property law and policymore generally. But this Article differs from much of the prior work on in-tellectual property and social norms in two ways. First, the tat-too industry norms reported here represent the first example ofmarket-driven informal alternatives to intellectual propertylaw that emerged despite fully applicable formal protections.Unlike norms that emerge in the shadow of some barrier to 13meaningful intellectual property protection, tattoo industrynorms function as an informal system of community govern- 9. Practitioners in the tattoo industry refer to themselves by a number ofterms, including “tattooists,” “tattoo artists,” and “tattooers.” See Interviewwith Subject 1, supra note 8, at 16; id. with Subject 13 at 144. While theseterms sometimes reflect subtle shades of meaning, I will refer to them as“tattooers,” the term most commonly used by my interview subjects. 10. See infra Part II.A. 11. See Robert D. Cooter, Decentralized Law for a Complex Economy: TheStructural Approach to Adjudicating the New Law Merchant, 144 U. PA. L.REV. 1643, 1661 (1996) (explaining that norms exist when members of a groupare obligated to do something under certain conditions or face some sanction). 12. See, e.g., David Fagundes, Talk Derby to Me: Intellectual PropertyNorms Governing Roller Derby Pseudonyms, 90 TEX. L. REV. 1093 (2012);Emmanuelle Fauchart & Eric von Hippel, Norms-Based Intellectual PropertySystems: The Case of French Chefs, 19 ORG. SCIENCE 187 (2008); Jacob Loshin,Secrets Revealed: How Magicians Protect Intellectual Property without Law, inLAW & MAGIC: A COLLECTION OF ESSAYS 123 (Christine A. Corcos ed., 2010);Dotan Oliar & Christopher Sprigman, There’s No Free Laugh (Anymore): TheEmergence of Intellectual Property Norms and the Transformation of Stand-UpComedy, 94 VA. L. REV. 1787 (2008). 13. See Loshin, supra note 12, at 125–30; Fauchart & von Hippel, supranote 12, at 187–91; Oliar & Sprigman, supra note 12, at 1799–1805; see alsoElizabeth L. Rosenblatt, A Theory of IP’s Negative Space, 34 COLUM. J.L. &ARTS 317, 322–25 (2011).
514 MINNESOTA LAW REVIEW [98:511 14ance that developed despite an applicable body of formal law.And unlike norms governing nonmarket behavior, tattoo indus-try norms prevail despite the same profit motive characteristic 15of many creative fields. Second, tattoo industry norms are unique because theymust account for a more complex set of relationships than thoseobserved in earlier case studies. Tattooers must establishnorms that govern not only their interactions with each other,but with clients who play an important role in the creation and 16use of their works as well. Further complicating matters,aside from copying within their industry, tattooers are faced 17with the question of the propriety of copying outside of it. Thisoverlapping complex of relationships between tattooers, clients,and the broader art world yields a correspondingly rich, nu- 18anced, and perhaps contradictory set of creative norms. Part I of this Article offers a brief history of the practice oftattooing—beginning with its widespread use in early civiliza-tions, then turning to its colonial reincorporation into the West, 19and the recent emergence of the “tattoo renaissance.” ThisPart will also introduce the basic structure and vocabulary ofthe contemporary tattoo industry. After establishing the doctrinal applicability and practicalirrelevance of formal copyright law to tattoos, Part II catalogsthe norms that structure the tattoo industry. To develop thisdescriptive account, I conducted fourteen in-person qualitativeinterviews in early 2012 with tattooers throughout the United 14. See infra Part II. 15. David Fagundes, for example, has described the norms governing roll-er derby pseudonyms. See Fagundes, supra note 12, at 1108–31. Because suchnoms de guerre are registerable as service marks, those norms serve as an al-ternative to, rather than a substitute for, formal law. Id. at 1114–15. But theyemerge in large part because of the non-market volunteerism that defines theroller derby community. Id. at 1140–43. 16. See Interview with Subject 2, supra note 8, at 19. 17. Others have described norms that distinguish between obligationsowed to those within a community and obligations owed to those outside of it.See Rebecca Tushnet, Payment in Credit: Copyright Law and Subcultural Cre-ativity, 70 LAW & CONTEMP. PROBS. 135, 156 (2007) (discussing norms withinfan communities). 18. See Tattoos Conquer Modern Art as Needles and Ink Replace Brushes,THE GUARDIAN, Jan. 22, 2010, http://www.theguardian.com/world/2011/jan/23/tattoo-artists-new-york (discussing the “intimate client relationships”maintained by tattooers and the tattoo industry’s “fractured” interaction withthe modern art world). 19. See generally Arnold Rubin, The Tattoo Renaissance, in MARKS OFCIVILIZATION 233 (Arnold Rubin ed., 1988).
2013] TATTOO NORMS 515States, identified through snowball sampling relying on exist- 20ing industry contacts. In terms of geography, gender, experi-ence level, work environment, style, and clientele, these inter-views capture a diverse, if not necessarily representative, cross 21section of perspectives within the tattoo community. These interviews revealed five core norms. First, tattooersas a rule recognize the autonomy interests of their clients bothin the design of custom tattoos and their subsequent displayand use. Second, tattooers collectively refrain from reusing cus-tom designs—that is, a tattooer who designs an image for a cli-ent will not apply that same image on another client. Third,tattooers discourage the copying of custom designs—that is, atattooer generally will not apply another tattooer’s custom im-ages to a willing client. Fourth, tattooers create and use pre-designed tattoo imagery, or “flash,” with the understandingthat it will be freely reproduced. Finally, tattooers generallyembrace the copying of works that originate outside of the tat-too industry, such as paintings, photos, or illustrations. In someways, these norms unintentionally echo familiar concepts fromcopyright law, but they differ from formal law in important re-spects as well. Part III offers a number of complementary explanations forthe content of tattoo industry norms and the industry’s relianceupon them. Both the culture and economics of the tattoo indus-try gave rise to its particular set of norms. Tattooers share adisdain for authority and a history of harsh legal regulationthat renders them generally hostile to the legal system. Per-haps more importantly, as a deeply client-driven enterprise,the tattoo industry is sensitive to consumer expectations. Thoseexpectations provide strong incentives for the development ofnorms in order to preserve the industry’s collective interest inthe continued viability of the market for custom tattoos. Final-ly, tattoo norms also erect barriers to entry to the increasinglycrowded field of tattooers, revealing the guild-like nature of theindustry. Part IV concludes by considering the broader lessons thetattoo industry offers for intellectual property law and policy.The tattoo industry’s success reveals the importance of custom- 20. Snowball sampling is a “nonrandom sampling technique . . . in whichsurvey subjects are selected based on referral from other survey respondents.”KEN BLACK, BUSINESS STATISTICS FOR CONTEMPORARY DECISION MAKING 230(4th ed. 2004). 21. See Interview with Subject 2, supra note 8, at 1.
516 MINNESOTA LAW REVIEW [98:511izing creative goods to deter widespread copying and of bun-dling easily copied creative goods with difficult-to-copy personalservices. I. A HISTORY OF TATTOOS The term “tattoo” entered the English language through 22Captain James Cook’s accounts of his travels in Polynesia. In1769, Cook witnessed Tahitians engaged in the practice of“tattowing” and described it as follows: Both sexes paint their Bodys, Tattow, as it is called in their Lan- guage. This is done by inlaying the Colour of Black under their skins, in such a manner as to be indelible . . . . The colour they use is lamp black, prepar’d from the Smoak of a Kind of Oily nut, used by them instead of Candles. The instrument for pricking it under the Skin is made of very thin flatt pieces of bone or Shell . . . . One end is cut into sharp teeth, and the other fastened to a handle. The teeth are dipped into black Liquor, and then drove, by quick sharp blows struck upon 23 the handle with a Stick . . . .Cook’s account marks the beginning of the modern history of 24the tattoo. But tattooing developed in cultures across theglobe long before the European public became fascinated withCook’s adventures. This Part briefly traces the five-thousand-year history oftattooing, from evidence of its use in pre-historic societies to thecontemporary, technology-mediated tattoo industry. This his-torical grounding, particularly the dramatic shift in Americantattooing over the last five decades, is central to understandingthe attitudes and norms surrounding copying within the indus-try today.A. THE ORIGINS OF TATTOOING In 1991, climbers in the Italian Alps stumbled upon thefrozen corpse of the Tyrolean Iceman, a 5300-year-old mummyadorned with fifty-seven simple geometric tattoos made from a 25pigment derived from soot. The Iceman was not alone among 22. C.P. Jones, Stigma and Tattoo, in WRITTEN ON THE BODY 1 (JaneCaplan ed., 2000). 23. WILLIAM J. L. WHARTON, CAPTAIN COOK’S JOURNAL DURING HIS FIRSTVOYAGE ROUND THE WORLD MADE IN H.M. BARK ‘ENDEAVOUR,’ 1768–71: ALITERAL TRANSCRIPTION OF THE ORIGINAL MSS. WITH NOTES AND INTRODUC-TION 93 (1893). 24. Jones, supra note 22, at 1. 25. Maria Anna Pabst et al., The Tattoos of the Tyrolean Iceman: A LightMicroscopical, Ultrastructural and Element Analytical Study, 36 J. ARCHAEOL.SCI. 2335, 2335 (2009); Jennifer Viegas, Oetzi Iceman’s Tattoos Came from
2013] TATTOO NORMS 517pre-historic tattoo collectors. Egyptian mummies dating back to2100 B.C. were tattooed with a “‘dark, blackish-blue pigmentapplied with a pricking instrument, perhaps consisting of one 26or more fish bones set into a wooden handle.’” A Scythianmummy from 500 B.C. bore elaborate depictions of animals on 27the arms and back. And a thousand-year-old Peruvian mum-my featured “ornamental tattoos depicting stylised apes, birds, 28and reptiles on the forearms, hands, and lower legs.” Tattooing was practiced throughout the ancient world. In 29Japan, the evidence dates to at least the third century B.C.The admonition in Leviticus—“[n]ever mark your skin with tat- 30toos”—suggests the practice was known among the Israelites.The Persians passed tattooing on to the Greeks, who used theterm “stigmata” to describe images “inscribed on the face orsome other part of the body . . . by pricking the places withneedles, wiping away the blood, and rubbing it in . . . the [ink] 31preparation.” The Greeks, in turn, passed the practice on to 32the Romans. The social meanings of these early tattoos were as diverseas the cultures that created them. Some tattoos were purely 33 34ornamental. Others had ceremonial or religious functions. 35Still others are thought to have served therapeutic purposes. 36Some indicated high rank or social status, whereas Greek andFireplace, DISCOVERY NEWS (July 17, 2009, 12:48 PM), http://www.nbcnews.com/id/31965532/ns/technology_and_science-science/t/oetzi-iceman-tatoos-came-fireplace/#.UjjhvaXujnp. 26. Jones, supra note 22, at 2 (quoting Richard S. Bianchi, Tätowierung,in LEXICON DER ÄGYPTOLOGIE 145–46 (W. Helck & E. Otto, VI ed., 1986)). 27. See Pabst, supra note 25, at 2337. 28. Leopold Dorfer et al., A Medical Report from the Stone Age?, 354 LAN-CET 1023, 1023 (1999). 29. See MARGO DEMELLO, BODIES OF INSCRIPTION: A CULTURAL HISTORYOF THE MODERN TATTOO COMMUNITY 72 (2000); DONALD RICHIE & IANBURUMA, THE JAPANESE TATTOO 11 (1980). 30. LEVITICUS 28:19 (New Living Translation). 31. Jones, supra note 22, at 4–5 (quoting AETIUS AMIDENUS,TETRABIBLON 8, 12; Alessandro Olivieri, Corpus Medicorum Graecorum VIII/2(Berlin, 1950), pp. 417–18). 32. Jones, supra note 22, at 4–11. 33. Dorfer et al., supra note 28, at 1023. 34. See Juliet Fleming, The Renaissance Tattoo, in WRITTEN ON THE BODY68–70 (Jane Caplan ed., 2000); Jones, supra note 22, at 13 (noting that tattooswere often part of Christian pilgrimages to the Holy Land). 35. See Dorfer et al., supra note 28, at 1023 (noting the close correspond-ence between tattoos on mummified remains and acupuncture points). 36. See WILFRID DYSON HAMBLY, THE HISTORY OF TATTOOING 206–07
518 MINNESOTA LAW REVIEW [98:511 37Roman “stigma” were reserved for prisoners and slaves. Overthe centuries that followed, tattoos continued to serve many ofthese same functions.B. COLONIALISM & TATTOOS IN THE WEST Tattooing was practiced in the British Isles long beforeCook’s excursions to Polynesia. The Picts, the pre-Roman in-habitants of modern-day Scotland, “receive[d] their name fromtheir painted . . . bodies, because they are marked by tattoos of 38various figures made with iron pricks and black pigment.”And in the early seventeenth century, Native Americans re- 39exposed the British to tattooing. Europeans of this period en-countered tattoos in Africa and Asia as well, apparently “with- 40out being tempted to try it for themselves.” That changed when Cook returned to Europe after his se-cond circumnavigation, bearing not only accounts of Polynesiantattooing but a living example of it. Omai, a tattooed native ofthe island of Raiatea, arrived in England in 1774 onboard one 41of Cook’s ships. Omai became something of a sensation;“newspapers printed his life story, the most celebrated artistspainted his portrait, the popular theatre made him into a heroand a box-office hit, and learned men counted it an honor to 42shake his hand . . . .” More importantly, he “sparked a tattoo- 43ing vogue among the English aristocracy.”(2009) (noting the “status-giving” function of tattoos in Polynesian cultures). 37. Jones, supra note 22, at 5. 38. SAINT ISIDORE (OF SEVILLE), THE ETYMOLOGIES OF ISIDORE OFSEVILLE 198 (Stephen A. Barney et al. trans., 2006); see also JOHN SPEED, THEHISTORY OF GREAT BRITAINE 167 (1611) (“The Britaines . . . by means of artifi-cial incisions of sundry formes have from their childhood divers shapes ofbeasts incorporate upon them; and having their markes deeply imprintedwithin their bodies . . . .”). 39. SAMUEL PURCHAS, PURCHAS HIS PILGRIMAGE 955 (1617) (describingAlgonquian women who would “pounce and raze their bodies, leggs, thighes,and armes, in curious knots and pourtraytures of fowles, fishes, beasts andrub a painting into the same, which will never will out.”); see also Fleming, su-pra note 34, at 69 (noting that “pouncing” and “razing” were English terms fortattooing used until the mid-eighteenth century). 40. Id. at 67. 41. Harriet Guest, Curiously Marked: Tattooing and Gender Differences inEighteenth-Century British Perceptions of the South Pacific, in WRITTEN ONTHE BODY 83 (Jane Caplan ed. 2000). 42. Stephan Oettermann, On Display: Tattooed Entertainers in Americaand Germany, in WRITTEN ON THE BODY 196 (Jane Caplan ed., 2000). 43. Fleming, supra note 34, at 67.
2013] TATTOO NORMS 519 Initially, the European tattooed class comprised primarilysailors, soldiers, and adventurers who traveled to Tahiti, New 44Zealand, and other far-flung locales. Cook’s own crewmemberswere among the first Europeans to return with traditional Pol- 45ynesian tattoos. And tattooing quickly spread throughout the 46British military. By the nineteenth century, European fashionable society 47was “gripped by a tattoo craze.” Sutherland Macdonald andTed Riley opened tattoo studios where wealthy Londoners ea-gerly joined the newly tattooed upper class with the likes ofQueen Olga of Greece, the Duke of York, Lady Randolph 48Churchill, and King Oscar II of Sweden. In the United States, Martin Hildebrandt opened the first 49professional tattoo shop in 1846 in New York. Early U.S.tattooers like Hildebrandt and Gus Wagner relied on the same 50basic techniques and hand tools used for thousands of years.But in 1891, another New York tattooer, Samuel O’Reilly, in-vented the tattoo machine, a device that fundamentally re- 44. DEMELLO, supra note 29, at 49. 45. Id. at 45; Harriet Guest, Curiously Marked: Tattooing, Masculinity,and Nationality in Eighteenth Century British Perceptions of the South Pacific,in PAINTING AND THE POLITICS OF CULTURE: NEW ESSAYS ON BRITISH ART1700–1850, at 130–31 (John Barrell ed., 1992) (describing the “inauguration ofthe nautical tradition” of tattooing in the eighteenth century). 46. For example, Lord Roberts, who was tattooed during his military ser-vice in Burma, encouraged tattoos among his officers. James Bradley, BodyCommodification? Class and Tattoos in Victorian Britain, in WRITTEN ON THEBODY 145 (Jane Caplan ed., 2000). 47. Id. at 145–46. 48. Id. Of course, tattoos were not found exclusively among members ofhigh society. During this period, relatively crude and inexpensive tattoos couldbe found among “sailors, dockers, and other rough diamonds”—as well ascriminals and convicts—throughout Europe. Id. at 141 (quoting GEORGEBURCHETT, MEMOIRS OF A TATTOOIST 13,139 (1958)); see also Jane Caplan,National Tattooing, Traditions of Tattooing in Nineteenth-Century Europe, inWRITTEN ON THE BODY 156–57 (Jane Caplan ed., 2000) (discussing tattoosamong German and Italian criminals); Hamish Maxwell Stewart & Ian Duf-field, Skin Deep Devotions: Religious Tattoos and Convict Transportation toAustralia, in WRITTEN ON THE BODY 118 (Jane Caplan ed., 2000); Abby M.Schrader, Branding the Other/Tattooing the Self: Bodily Inscription amongConvicts in Russia and the Soviet Union, in WRITTEN ON THE BODY 184–85(Jane Caplan ed., 2000); DEMELLO, supra note 29, at 50. 49. DEMELLO, supra note 29, at 49. 50. Alan Govenar, The Changing Image of Tattooing in American Culture,1846–1966, in WRITTEN ON THE BODY 214–15 (Jane Caplan ed., 2000).
520 MINNESOTA LAW REVIEW [98:511 51shaped tattooing. The introduction of electric machinery made 52tattooing cheaper, faster, and less painful. It also helped de-velop a distinctive American aesthetic characterized by “strongblack line . . . heavy black shading; and a dab of color” from a 53limited palette emphasizing red, blue, and green. Tattooers in the United States were generally from the 54same working class backgrounds as their clients and typically 55had no prior art training. Rather than create custom artworkfor their clients, tattooers of this era worked almost exclusively 56from collections of pre-drawn images called “flash.” Designsincluded military insignia, ships, hearts, flowers, skulls, dag- 57gers, snakes, tigers, Christian icons, and scantily clad women.These same images, or minor variations on them, hung on the 58walls of nearly every tattoo shop of the era. When a tattooercame across an appealing new design, he copied it—sometimesdirectly off of the body of a willing client—and added it to his 59stock of flash. Some enterprising tattooers, first among themLew Alberts and Charlie Western, sold sheets of flash to other 60tattooers. The combination of the electric tattoo machine and simple,pre-made flash designs enabled the industry to capitalize on 61the popularity of tattoos during the Interbellum period. Inmany ways, the tattoo industry was structured around theneeds of soldiers and sailors who frequented tattoo shops in 62large groups with limited leave time. “Sailors came in,” onetattooer told me, “and you cranked them out as quickly as you[could] because they’re all on leave. The financial impetus was 51. See U.S. Patent No. 464,801 (issued Dec. 8, 1891). Charlie Wagner pa-tented improvements on O’Reilly’s device in 1904. See U.S. Patent No. 768,413(issued Aug. 23, 1904). 52. Susan Benson, Inscriptions of the Self: Reflections on Tattooing andPiercing in Contemporary Euro-America, in WRITTEN ON THE BODY 240 (JaneCaplan ed., 2000); DEMELLO, supra note 29, at 50. 53. DEMELLO, supra note 29, at 50. 54. See Rubin, supra note 19, at 234; R.I. Geare, Tattooing, SCI. AM., Sept.12, 1903, at 190. 55. DEMELLO, supra note 29, at 51; Rubin, supra note 19, at 234. 56. DEMELLO, supra note 29, at 52–53; Govenar, supra note 50, at 217. 57. DEMELLO, supra note 29, at 52; Govenar, supra note 50, at 218–19. 58. DEMELLO, supra note 29, at 52. 59. Id. 60. Govenar, supra note 50, at 217. 61. DEMELLO, supra note 29, at 59. 62. See DEMELLO, supra note 29, at 63–65.
2013] TATTOO NORMS 521 63there to crank those [tattoos] out.” Soldiers and sailors duringthe World Wars also bolstered the popularity of tattooingamong the general public and helped set trends in terms of tat- 64too style, subject matter, and placement. But in the post-war period, the popularity of tattoos beganto wane. Many soldiers returning from World War II realizedthat their tattoos were not as enthusiastically accepted outside 65of the military. And unsanitary conditions in many tattoo 66shops raised serious public health concerns. Tattooers failedto sterilize equipment, used the same needles on successive 67customers; and drew ink from a shared container. After re-ported hepatitis outbreaks, many state and local governmentsbegan to heavily regulate tattooing or ban it altogether, forcing 68many tattooers either out of town or out of business. Although tattooing continued, both in licensed shops andunlicensed back rooms, garages, and basements, the post-warperiod was a time of creative stagnation. Tattooers still reliedlargely on the same collection of flash designs prominent at the 69turn of the century. But this period of creative stagnation anddwindling popularity set the stage for a fundamental shift in 70the industry.C. THE TATTOO RENAISSANCE For more than a century, the U.S. tattoo industry was de-fined by flash. These simple, badge-like images offeredtattooers a source of popular, ready-made designs that could be 71quickly and consistently applied to their customers. Flash metthe needs of tattooers, who considered themselves craftsmen ortradesmen, with little interest in artistic expression for its own 72sake. And it met the needs of clients, whose tattoos often 63. Interview with Subject 6, supra note 8, at 54. 64. DEMELLO, supra note 29, 63–65. 65. Id. at 66–67; Govenar, supra note 50, at 229. 66. See, e.g., DEMELLO, supra note 29, at 62. 67. Id. at 62. 68. Govenar, supra note 50, at 229–32. For more on the legal regulation ofthe tattoo industry, see infra Part III.A. 69. See Govenar, supra note 50, at 217. 70. See Rubin, supra note 19, at 235–36. 71. DEMELLO, supra note 29, at 196 n.4. 72. See CLINTON R. SANDERS, CUSTOMIZING THE BODY: THE ART ANDCULTURE OF TATTOOING 86 (2008); see also Rubin, supra note 19, at 233–35.
522 MINNESOTA LAW REVIEW [98:511communicated group membership or commemorated milestones 73through established iconography. But beginning in the 1960s, tattooers began to 74reconceptualize their work. Norman Keith Collins, betterknown as Sailor Jerry, was among the first and most important 75tattooers to challenge prevailing practices. Influenced by Jap-anese tattoo traditions, he sought to elevate tattoo artistry inthe United States by creating elaborate, stylistically and the-matically consistent tattoos that incorporated the entire human 76body as a canvas. Tattoos tailored to a particular human formin the Japanese tradition stood in stark contrast to the typicalAmerican approach of unsystematically scattering small 77standalone images across the body. Over the next few decades, the innovations of Sailor Jerry 78 79and protégés like Cliff Raven and Don Ed Hardy helpedbring about three interlinked shifts in the industry that led to 80what some have called the tattoo renaissance. First, a newgeneration of tattooers was drawn to the industry because of itspotential for artistic innovation and expression. Experiencedand trained fine artists, many with graduate-level education, 81began to see tattooing as a viable and legitimate career path.Second, the creative output of the tattoo industry changed as aresult of the influx of artistically inclined tattooers. New tech-niques and styles that drew on influences ranging from cubism 82to graffiti began to emerge. Third, the client base of the indus-try underwent a transformation. As clients became more afflu-ent, better educated, and more knowledgeable about tattoosand art generally, they developed higher expectations of tech- 83nical skill and originality. 73. “When you had gone five thousand miles at sea, you got a bluebird onyour chest. When you’d gone ten thousand, you got the second bird on the oth-er side.” DEMELLO, supra note 29, at 64 (quoting Doc Webb). 74. Rubin, supra note 19, at 233–35. 75. DEMELLO, supra note 29, at 73–74. 76. Rubin, supra note 19, at 236–37; see also DEMELLO, supra note 29, at72–75. 77. See Rubin, supra note 19, at 233–35 (describing the “international folkstyle” of tattooing that characterized the early U.S. tattoo industry). 78. Id. at 236–41. 79. Id. at 241–45. 80. Id. at 233–36. 81. Id. at 235; SANDERS, supra note 72, at 19. 82. See DALE RIO & EVA BIANCHINI, TATTOO 12 (2004). 83. See Rubin, supra note 19, at 235; see also DEMELLO, supra note 29, at92.
2013] TATTOO NORMS 523 These three changes gave rise to the most important devel-opment in the industry from the perspective of creative 84norms—custom tattooing. Rather than simply offer their cli-ents a selection of flash from which to choose, tattooers increas-ingly created unique bespoke designs for individual clients, cus- 85tomized for both their tastes and their bodies. Custom workprovided tattooers an opportunity to create new pieces of origi-nal art instead of re-inking old designs. To the older generationof tattooers, who saw their work primarily in financial ratherthan artistic terms, the choice to devote time and energy to cus-tom designs was puzzling. As one tattooer described: That’s how the old timers made their money, repeating stuff over and over again. When the new school guys came around, when I came around, and started doing original [one-of-a-kind] artwork on every- body, the old timers looked at me like “Dude, you are crazy. Why do 86 you want to do that? We’ve got plenty of designs that sell great.” As a result of these changes, the tattoo industry today is 87defined by two very different paradigms. The street shop fitscomfortably with the common public conception of a “tattoo par- 88 89lor.” A garish neon sign flickers above the entrance. Thewalls are papered with flash designs. Clients walk in off of thestreet without appointments, select the image of their choice,and are tattooed by whichever tattooer happens to be free at 90the moment. Clients are often charged a pre-determined, 91cash-only flat rate. Most simple flash designs can be tattooed 92in well under an hour, sometimes as quickly as a few minutes.Hundreds, likely thousands, of tattoo shops in the United 93States fit this basic model. 84. See Enid Schildkrout, Inscribing the Body, 33 ANN. REV. ANTHROPOL-OGY 319, 336 (2004) (“As more and more middle-class people were tattooed,and as artists with formal art training in other media entered the profession. . . custom work increasingly replaced flash . . . .”). 85. See id. 86. Interview with Subject 7, supra note 8, at 58. 87. See, e.g., INKIES TATTOO STUDIO, http://www.inkiestattoo.com (lastvisited Nov. 2, 2013) (describing the tattoo shop as “high-end”). 88. See Interview with Subject 1, supra note 8, at 8. 89. See, e.g., FINELINE, http://www.finelinetattoo.com (last visited Nov. 2,2013). 90. See, e.g., Interview with Subject 9, supra note 8, at 81–82. 91. See, e.g., SANDERS, supra note 72, at 143. 92. See, e.g., Interview with Subject 6, supra note 8, at 54. 93. As of 2007, an estimated 15,000 tattoo shops operated in the UnitedStates. See Chafkin, supra note 3.
524 MINNESOTA LAW REVIEW [98:511 Less familiar to the public imagination is the high-end cus-tom tattoo shop. Skull & Sword, a respected shop in San Fran- 94cisco, is one example. Located on the second floor of nonde- 95script building, the shop features minimal signage. Ratherthan accept walk-ins, tattooers book appointments several 96months in advance. Instead of flash hanging on the walls,each tattooer’s portfolio of custom tattoos is available for view- 97ing. Custom tattoo clients are charged an hourly rate for thetime spent applying the tattoo. At high-end shops, rates be-tween $150 and $250 per hour are not uncommon—again, cash 98only. A sizable custom tattoo can take many hours to com-plete, often requiring multiple appointments over the course of 99months. Most tattoo shops, and most tattooers, operate somewherealong a spectrum between these two paradigms, providing acombination of small, simple, pre-designed tattoos and more 100elaborate custom work. Since most tattooers learn on the jobthrough an apprenticeship, they commonly start with simpleflash designs, developing the skills necessary for more complex 101custom designs over time. And because they work in both mi-lieus, many tattooers self-consciously play the roles of both cre-ator and copyist, a duality that informs and complicates indus- 102try norms surrounding creative production. Tattooers work ina medium that has a long history of widely accepted copying of 103a corpus of shared images and iconography. That tradition,however, conflicts with the premium placed on originality ascustom tattooing developed. 94. SKULL & SWORD, http://www.theskullandsword.com (last visited Nov.2, 2013). 95. Skull & Sword, CITY-DATA.COM, http://www.city-data.com/businesses/212287593-skull-sword-san-francisco-ca.html (last visited Nov. 2, 2013). 96. SKULL & SWORD, supra note 94. 97. Id. 98. “Cash only” is perhaps the only truly universal rule in the tattoo in-dustry. See, e.g., SANDERS, supra note 72, at 105, 143. 99. Interview with Subject 13, supra note 8, at 154. 100. See, e.g., id. with Subject 12 at 130 (explaining the grey area betweentracing tattoos and creating new work). 101. As one tattooer explained, “When you are first starting off and learn-ing to tattoo you don’t get to be picky. You don’t get to choose. Because you aretrying to learn, you have to practice.” Interview with Subject 7, supra note 8,at 57. 102. See, e.g., Interview with Subject 12, supra note 8, at 130 (explainingthat the tattooer had not been “doing anything [other prominent tattooers]had not been doing for 20 years”). 103. See, e.g., DEMELLO, supra note 29, at 37, 53.
2013] TATTOO NORMS 525 II. LAW, NORMS & TATTOOS A tattoo, like any other original work fixed in a tangiblemedium, is protected by copyright law. And like the other pub-lic goods that copyright law protects, tattoos are susceptible to 104unauthorized reproduction. Once a tattooer creates a designand applies it to the skin of a client—particularly if an image ofthe tattoo is published on the internet or in print—non-rivalry 105and non-excludability lead to predictable results. Copying is a 106topic of perennial concern within the tattoo industry. Butcopyright lawsuits or other formal assertions of rights are ex-ceedingly rare. Instead, tattooers have developed a set of in-formal norms to structure the creative process and relation- 107ships within their industry. This Part, after addressing theapplicability of formal copyright protection, describes the keynorms that have emerged within the industry.A. FORMAL LEGAL PROTECTION FOR TATTOOS 108 In the absence of some applicable exclusion or limitation,copyright law protects “original works of authorship fixed in 109any tangible medium of expression . . . .” Originality requiresthat a work is independently created rather than copied frompreexisting material, and that it reflect a modicum of creativi- 110ty. Although the standard for originality is low, its evaluationturns on both an objective analysis of the work and an exami- 111nation of the process by which it was created. The fixation requirement ensures that the work is embod-ied in a physical form “sufficiently permanent or stable to per-mit it to be perceived, reproduced, or otherwise communicated 104. See 17 U.S.C. § 101 (2012). 105. See ROBERT COOTER & THOMAS ULEN, LAW AND ECONOMICS 40 (6thed. 2011). 106. See, e.g., Interview with Subject 1, supra note 8, at 6–7 (explainingthat copying is only acceptable within certain circumstances). 107. See, e.g., id. with Subject 12 at 130 (stating that tattooing is “not rein-venting the wheel,” everything is based on copying). 108. See, e.g., 17 U.S.C. § 101 (2012) (“[T]he design of a useful article . . .shall be considered a pictorial, graphic, or sculptural work only if, and only tothe extent that, such design incorporates pictorial, graphic, or sculptural fea-tures that can be identified separately from, and are capable of existing inde-pendently of, the utilitarian aspects of the article.”). 109. Id. § 102(a). 110. See Feist Publ’n, Inc. v. Rural Tel. Serv. Co., 499 U.S. 340, 345 (1991). 111. Id. at 346–47.
526 MINNESOTA LAW REVIEW [98:511 112for a period of more than transitory duration.” Fixationserves two functions. It helps reduce problems of proof by in- 113sisting on a durable record of the protected work. Fixation al-so helps ensure that works are preserved and disseminated for 114the benefit of future generations. In the case of a custom tattoo, the question ofcopyrightability must be addressed with regard to two distinctbut related works. Tattooers occasionally ink an image free- 115hand directly on a client’s skin. But more often, they create a 116detailed line drawing of the tattoo design on paper. Once theline drawing is prepared, the tattooer copies it to a stencil,which when transferred to the client’s skin serves as a template 117for tattooing the outline of the design. Although the line drawing forms the basis for the tattoo, itdiffers from the final product on the client’s skin in important 118ways. A drawing on paper is a two-dimensional representa-tion. Depending on the location of the tattoo, the client’s body 119transforms that flat image to a three-dimensional work. Par-ticularly for tattoos thoughtfully designed to take advantage ofthe shape of the client’s body, the shift to three dimension can 120dramatically alter the appearance of the tattoo. More gener-ally, line drawings often lack the shading and color typically 121added to the final tattoo. If the tattoo embodies creative ex-pression not reflected in the line drawing, it is probably best 122considered a derivative work in copyright terminology. Butwhere the tattooer simply transfers the line drawing to thebody without adding or altering its expression, the tattoo is 123properly understood as a mere reproduction. 112. 17 U.S.C. § 101 (2012). 113. See Douglas Lichtman, Copyright as a Rule of Evidence, 52 DUKE L.J.683, 730–34 (2003). 114. See Aaron Perzanowski, Fixing RAM Copies, 104 NW. U. L. REV. 1067,1094–95 (2010). 115. Interview with Subject 9, supra note 8, at 82. 116. See id. with Subject 9 at 82–83. 117. See id. 118. See id. with Subject 1 at 12. 119. Id. with Subject 8 at 71. 120. See id. with Subject 8 at 71–72. 121. Id. with Subject 7 at 64. 122. See 17 U.S.C. § 101 (2012). 123. Id.
2013] TATTOO NORMS 527 Line drawings fall squarely within the Copyright Act’s def- 124inition of “pictorial, graphic, and sculptural” works. A pencilor ink drawing on paper satisfies the fixation requirement. Soassuming the work is not merely a copy of a preexisting workand reflects some amount of creativity, the line drawing is eli-gible for copyright protection. This result is neither surprisingnor controversial. The same basic analysis would seem to hold for the tattooas applied to a human subject. To the extent the tattoo is inde-pendently created and satisfies the low bar for creativity, it is 125original. And as your mother has no doubt warned you, tat-toos are permanent. An indelible representation of a work easi-ly meets the statute’s demand for a work “fixed in a tangible 126medium of expression.” Tattoos then, like their pencil andpaper counterparts, appear to be appropriate subjects of copy- 127right protection. But a recent dispute over Mike Tyson’s facial tattoo gaveone commentator an opportunity to challenge this seemingly 128straightforward result. In 2003, Victor Whitmill tattooed an 129abstract image, inspired by Maori moko, on the face of former 124. See id. §§ 101, 102(a). 125. See Feist Publ’n, Inc. v. Rural Tel. Serv. Co., 499 U.S. 340, 345–47(1991). 126. Id. 127. The existing literature on copyright in tattoos either assumes or con-cludes as much. See Matthew Beasley, Note, Who Owns Your Skin: IntellectualProperty Law and Norms Among Tattoo Artists, 85 S. CAL. L. REV. 1137(2012); Thomas F. Cotter & Angela M. Mirabole, Written on the Body: Intellec-tual Property Rights in Tattoos, Makeup, and Other Body Art, 10 UCLA ENT.L. REV. 97 (2002); David Cummings, Creative Expression and the Human Can-vas: An Examination of Tattoos as a Copyrightable Art Form, 2013 U. ILL. L.REV. 279 (2013); Christopher A. Harkins, Tattoos and Copyright Infringement:Celebrities, Marketers, and Businesses Beware of the Ink, 10 LEWIS & CLARK L.REV. 313 (2006); Christine Lesicko, Tattoos as Visual Art: How Body Art Fitsinto the Visual Artists Rights Act, 53 IDEA 39 (2013); Yolanda M. King, TheChallenges “Facing” Copyright Protection for Tattoos, 92 OR. L. REV. (forth-coming 2013). 128. See Declaration of David Nimmer at 18, Whitmill v. Warner Bros.Entm’t, Inc., No. 4:11-cv-00752 (E.D. Mo. May 20, 2011) [hereinafter NimmerDeclaration] (“For copyright protection in tattoos to arise, Congress wouldhave to act anew, in the manner of its 1980 amendment to the Copyright Actto afford protection to computer software and its 1990 amendment to the Cop-yright Act to afford protection to architectural works.”). 129. See generally Peter Gathercole, Contexts of Maori Moko, in MARKS OFCIVILIZATION 171 (Arnold Rubin ed., 1988).
528 MINNESOTA LAW REVIEW [98:511 130heavyweight boxing champion Mike Tyson. Tyson subse-quently appeared in the Warner Brothers film The Hangover.In that film’s sequel, the same tattoo design was reproduced onthe face of comedian Ed Helms as evidence of a night of drunk- 131en decision-making. Whitmill, after seeing promotional mate-rials for the film featuring his design, sued Warner Brothers to 132enjoin the release of the film. 133 In an expert witness declaration, David Nimmer offereda number of legal conclusions suggesting that Whitmill was not 134entitled to copyright protection for Tyson’s tattoo. Despite af-firming in his oft-cited copyright treatise that a tattoo could“qualify as a work of graphic art, regardless of the medium in 135which it is designed to be affixed” including “human flesh,”Nimmer argued in his capacity as an expert that Tyson’s skindid not qualify as a tangible medium of expression, comparing 136it to a frosty window pane or wet sand as the tide approaches.But those quintessential examples of transitory media are a far 137cry from the lifelong fixation of a tattoo. More plausibly, Nimmer pointed to the useful article limi-tation on pictorial, graphic, and sculptural works as a separate 138basis for denying protection. The useful article doctrine pre-cludes copyright protection for products whose purpose is utili-tarian rather than expressive, largely eliminating copyright 130. Complaint at 2, Whitmill v. Warner Bros. Entm’t, Inc., No. 4:11-cv-00752 (E.D. Mo. Apr. 28, 2011). 131. Id. at 4. 132. Id. at 4–5. Whitmill’s copyright registration covers “artwork on [a] 3-Dobject” presumably because he created the tattoo directly on Tyson’s face with-out first drawing the design on paper. See TRIBAL TATTOO, No.VA0001767704, available at http://cocatalog.loc.gov/cgi-bin/Pwebrecon.cgi?v1=1&ti=1,1&Search%5FArg=va0001767704&Search%5FCode=REGS&CNT=25&PID=FRK-tCFkHI5cOIoxALv0Rr_iVMy&SEQ=20130918145100&SID=1. 133. Nimmer has updated and revised Nimmer on Copyright since 1985.See David Nimmer, IRELL & MANELLA LLP, http://www.irell.com/professionals-51.html (last visited Nov. 2, 2013). 134. See generally Nimmer Declaration, supra note 128. 135. Nimmer Declaration, supra note 128, at 4 (citing NIMMER ON COPY-RIGHT § 1.01[B][1][i] n.392 (1999)). 136. Nimmer Declaration, supra note 128, at 4; see also Ann Bartow, Whena Treatise Writer Tries to Reconfigure Copyright Law to Benefit a Client,MADISONIAN.NET (May 25, 2011), http://madisonian.net/2011/05/25/when-a-treatise-writer-tries-to-reconfigure-copyright-law-to-benefit-a-client (notingNimmer’s reversal). 137. See Nimmer Declaration, supra note 128, at 9. 138. Id. at 7–11.
2013] TATTOO NORMS 529 139protection for industrial design. Pictorial, graphic, or sculp-tural elements incorporated into a useful article are protectableonly to the extent they are physically or conceptually separable 140from the underlying article. Mike Tyson’s face, as Nimmerrightly noted, serves a primarily utilitarian, biological function. But applying the standard test for separability, Tyson’s 141tattoo is easily divorced from his skin as a conceptual matter.Nimmer insisted, however, that “the only legally cognizable re-sult is to apply the strict requirement of physical separabil- 142ity.” Otherwise, he claimed the Copyright Act would “set tonaught the Thirteenth Amendment’s prohibition of badges of 143slavery.” At the root of Nimmer’s startling equation of willing recipi-ents of tattoos with slaves is a concern over certain remedies 144available to a successful copyright plaintiff. As he noted, cop-yright protection could grant Whitmill control over Tyson’s 145public displays of the tattoo as well as reproductions of it in 146photographs or video. Nimmer worried that the derivativework right could give Whitmill some say over other tattoos Ty- 147son might choose to apply to his face. And in the unlikelyevent the tattoo qualifies as a “work of recognized stature” un-der the Visual Artists Rights Act, Tyson could be prevented 148from destroying or removing it. 139. Robert C. Denicola, Applied Art and Industrial Design: A SuggestedApproach to Copyright in Useful Articles, 67 MINN. L. REV. 707 (1983) (“Copy-right law has reluctantly embraced a variety of works embodied in utilitarianobjects, while simultaneously purporting to exclude the general province ofindustrial design.”). 140. Brandir Int’l, Inc. v. Cascade Pac. Lumber Co., 834 F.2d 1142, 1143(2d Cir. 1987). 141. See id. at 1145 (“[W]here design elements can be identified as reflect-ing the designer’s artistic judgment exercised independently of functional in-fluences, conceptual separatability exists.”); see also King, supra note 127. 142. Nimmer Declaration, supra note 128, at 11. 143. Id. 144. See id. at 5–6. 145. See 17 U.S.C. § 106(5) (2012) (granting the copyright holder the exclu-sive right to publicly display the work). 146. See id. § 106(1) (granting the copyright holder the exclusive right toreproduce the work). 147. See id. § 106(2) (granting the copyright holder the exclusive right toprepare derivatives based on the work). 148. See id. § 106A(a)(3)(B) (granting the author of a work of visual art theright “to prevent any destruction of a work of recognized stature”).
530 MINNESOTA LAW REVIEW [98:511 Although the court characterized Nimmer’s arguments as 149“silly,” these potential consequences are indeed alarming.Luckily, copyright law offers courts many tools aside from theblunt instrument of protectability that they could, and almostcertainly would, use to avoid this parade of horribles. These in- 150 151clude narrow readings of exclusive rights, fair use, first sale 152 153and related exhaustion doctrines, implied license, and equi- 154table discretion over injunctive relief. But there is anotherreason of far more practical importance why Nimmer’s fearswere unwarranted: the scenarios he envisioned are fundamen-tally at odds with the established norms of the tattoo indus- 155try. Copyright suits between tattooers and their clients, or 156suits between two tattooers, are virtually non-existent. Mostof the copyright litigation involving tattoos centers around tat- 157too-inspired designs used on clothing or other merchandise. 149. See Joe Mullin, Tyson Tattoo Lawsuit: Studio’s Defenses Are ‘Silly,’Says Judge, PAIDCONTENT (May 25, 2011), http://paidcontent.org/2011/05/25/419-judge-shows-sympathy-for-plaintiffs-in-tyson-tattoo-case/. The partiessubsequently agreed to dismiss the suit under the terms of an undisclosed set-tlement. See David Kravets, Hangover Tattoo Infringement Lawsuit Settles,WIRED, June 22, 2011, 2:15 PM, http://www.wired.com/threatlevel/2011/06/tattoo-flap-settled. 150. See Jessica Litman, Lawful Personal Use, 85 TEX. L. REV. 1871, 1879(2007). 151. See 17 U.S.C. § 107 (2012). 152. See id.; see also Aaron Perzanowski & Jason Schultz, Copyright Ex-haustion and the Personal Use Dilemma, 96 MINN. L. REV. 2067, 2107 (2012). 153. See infra Part II.E; see also Michael Grynberg, Property Is a Two-WayStreet: Personal Copyright Use and Implied Authorization, 79 FORDHAM L.REV. 435, 454 (2010). 154. See N.Y. Times Co. v. Tasini, 533 U.S. 483, 486, 505 (2001) (“It hardlyfollows from [a finding of infringement] that an injunction . . . must issue.”);Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 578, n.10 (1993) (describinghow the goals of copyright law are “not always best served by automaticallygranting injunctive relief ” ); see also eBay Inc. v. MercExchange, L.L.C., 547U.S. 388, 392 (2006) (noting that issuing patent injunctions “in accordancewith the principles of equity” is “consistent with [the Court’s] treatment of in-junctions under the Copyright Act”). 155. See, e.g., Interview with Subject 3, supra note 8, at 40. 156. Whitmill, it should be stressed, did not bring a suit against his client.Tyson prominently displayed his tattoo in the first Hangover and other subse-quent paid public appearances, including his current one man show onBroadway, without any objection from his tattooer. See Michael Wilson, ForTyson, a ‘Vulnerable’ Performance Outside the Ring, N.Y. TIMES, June 19,2012, at A20. 157. See Crispin v. Audigier, 839 F. Supp. 2d 1086, 1088 (C.D. Cal. 2011)(discussing that tattoo designs were used on apparel, jewelry, and other mer-chandise); Tattoo Art, Inc. v. Tat Int’l L.L.C., 711 F. Supp. 2d 645, 647 (E.D.
2013] TATTOO NORMS 531Occasionally tattooers sue each other on non-copyright 158grounds. And rarely, non-copyright litigation arises between 159tattooers and their clients. But not a single reported decision addresses a copyrightclaim brought by a tattooer against a client or a fellow tattooer.And the available record reveals only one such case even being 160filed in the United States. In 2005, Portland tattooer Mat-thew Reed filed a complaint against his client, Rasheed Wal- 161lace, a former player for the NBA’s Portland Trailblazers.Reed tattooed a custom image of an Egyptian family on Wal- 162lace’s arm, for which Wallace paid Reed $450. Six years later,the advertising firm Wieden+Kennedy prominently featured 163Wallace’s tattoo in an advertising campaign for Nike. Reed,who had not authorized the use of the tattoo in the ad cam-paign, registered a copyright in his drawing of the design andfiled an infringement complaint against Nike,Wieden+Kennedy, and Wallace, which was eventually dis- 164missed after a joint stipulation. Notably, although Reed’s cli-ent was named as a party, it was the prominent use of the tat-too in the ad campaign and not Wallace’s regular public 165displays of it that triggered the suit.Va. 2010) (noting flash designs licensed for use as airbrush stencils); S.T.R.Indus. v. Palmer Indus., 1999 WL 258455 (N.D. Ill. Apr. 9, 1999) (explainingthat tattoo themed designs applied to pool cues). 158. See, e.g., Quidgeon v. Olsen, 2011 U.S. Dist. LEXIS 42309, at *2–3(C.D. Ill. Apr. 19, 2011) (explaining a trademark dispute between competingtattoo shops). 159. See, e.g., Minnifield v. Ashcraft, 903 So. 2d 818, 820 (Ala. Crim. App.2004) (demonstrating the invasion of privacy claim against tattooer for pub-lishing photo without permission). 160. See Complaint, Reed v. Nike Inc., No. 05-CV-198 BR (D. Or. Feb. 10,2005). 161. Id. A similar dispute arose in the United Kingdom over the use offootballer David Beckham’s tattoos in an ad campaign. See Noam Cohen, OnTyson’s Face, It’s Art. On Film, A Legal Issue., N.Y. TIMES, May 21, 2011, atA1. 162. Complaint, Reed, supra note 160. 163. Id. 164. Stipulation of Dismissal with Prejudice, Reed v. Nike, Inc., No. 05-CV-198 BR (D. Or. Oct. 19, 2005). 165. For a detailed discussion of Reed, see Harkins, supra note 127. Recent-ly, Rick Genest a heavily tattooed model with distinctive facial tattoos settleda dispute with the producers of the television series American Horror Storyover alleged copyright and likeness rights. Matthew Belloni, Fox Settles ‘Amer-ican Horror Story’ Legal Spat Over 'Zombie Boy' Tattoo (Exclusive),HOLLYWOOD REPORTER (Oct. 16, 2012), http://www.hollywoodreporter.com/thr-esq/foxs-american-horror-story-zombie-379219.
