A year from now, if someone asks Detroit Pistons' forward Rasheed Wallace if his tattoo hurt, the answer will be an angry "yes."
As reported last week on my personal blog, iamPariah.com (Tattoo Artist Claims Copyright Infringement Over Nike Ad), Portland, Ore. tattoo artist Matthew Reed is sueing Nike, another Oregon native, over the use of Detroit Pistons' (and former Portland Trail Blazer) Rasheed Wallace's tattoo, which has been prominently featured in Nike advertisements starring the basketball player. Reed wants the advertisements pulled, and demands damages for the unlicensed use of his artwork. The tattoo can be seen in this photograph from the Detroit News.
Illustration by Pariah S. Burke / The Design Weblog
In his comment to the iamPariah.com post "Uncle Bill" writes:
After 32 years in the TATTOO business,I have never met a more talented, honest artist than Matt Reed and his crew. For [too] long the magazine world and other media have made money off of the sweat and talent of tattoo artists around the world. The media [has] burned with lust as they line their pockets with MONEY from off color stories and pictures feeding on a world that is so far above anything that they are able to understand. It is about time we stand up to the money powerful! Matt has the guts we wished we had. WAY TO GO!!!
Way to go, indeed. Reed's demand to share in the proceeds Wallace has earned from any exposure in which in his tattoo is visible is an amazingly greedy and foolish move that will ultimately damage the tattoo industry as a whole, not to mention end Reed's career in it.
Yes, tattoo art, like any other form of visual expression, is automatically protected under U.S. copyright laws upon its creation.
Follow it through. If inkers begin asserting copyright ownership and demanding royalties for any commercial photograph or video that includes their work, then the tat artists are the ones who will suffer. In the short term, commercial entities like Nike and its ad agency will begin obfuscating tattoos in photos and videos (blurring them, digitally removing them, altering them somehow, or simply covering them up). In the long run, celebrities will lose interest in obtaining tattoos because of the additional hassles and expenses involved in having them in a public life.
If your first thought in response to that is “they can just pay royalties to the tattoo artist,” it isn’t that simple.
First, is the problem of locating and securing agreements with artists of existing tattoos.
Let’s assume celebrities, ad agencies, and other commercial organizations are so honest as to proactively seek out tattoo artists whose work has already or will soon appear in commercial imagery. Few people remember the name of their tattoo artist for long. I have no idea the name of the guy who inked my arm 8 years ago. So, proactively tracking down the person to whom to pay royalties becomes problematic—even if a single artist, who is still living, owned his artwork outright and did not partner with other artists or entities in the tattoo business that applied the ink in question. If the artist has passed away, bring in the hellacious nightmare of negotiating with potentially otherwise penniless descendants and, worse, unclear heirs to the artist’s estate.
If celebrities rely on the artist to come forward and assert his rights, then we all know dishonest people will come out of the woodwork claiming ownership for a piece of the pie and/or 15 minutes of fame claiming to be Paris Hilton’s tattoo artist. Both the celebrity and the real tattoo artist then will likely face a complicated legal battle to prove the artist’s ownership among all the would-be gold-diggers.
The second major problem is celebrity/commercial response to a post-Reed v. Nike tattoo industry.
If this becomes routine—tattoo artists suing for royalties for any commerical photograph or video that happens to feature all or a portion of their original body modification art—tattoo artists are going to get themselves into serious trouble. Most inkers I know are very intelligent people, but are they attorneys?
Those celebrities, sports figures, and others who have a reasonable expectation that their arm or back ink might wind up showing in a commercial shot, but who are set on obtaining ink anyway, are going to be advised by their agents, managers, or publicists to fore arm themselves (pardon the pun). They will walk into tattoo parlors with release forms and waiver of rights affidavits in hand, demanding that tattoo artists sign away rights to the to-be-applied designs. How much trouble do you think this will be for tat artists?
While some tat artists will refuse to sign such agreements—thus losing the business of these clients—most will happily (and often ignorantly) sign them, exposing themselves to who knows what problems. A single, easily missed line in such a contract, for example, could allow the tattoo recipient to actually demand payment from the artist if the same design is used on someone else. And, since tattoos are body art, and civil courts have no jurisdiction to demand the removal of body art from uninvolved parties, the artist could conceiveably pay outrageous royalties for the remainder of the lifetimes of any and all recipients of the tattoo.
And celebrities will not be the only ones in tattoo parlors weilding licensing agreements.
Since tats are permanent, and one never knows which tattoo client will become famous or display the artist’s work in a paying photograph, video, or film, savvy tattoo artists will need to adopt a blanket policy of securing their rights in advance. They will come up with their own licensing and rights contract, adding it to the permissions and contact forms already required of clients pre-needle. However, by complicating the tattoo process even further, such contracts will drive away customers—especially those with a reasonable expectation of for-pay modeling or celebrity, precisely the people tattoo artists covet most for the exposure they can give an artist’s work and name.
Last but not least is the incredibly complicated matter of the ink being permanent. Tats are there unless removed through painful laser surgeries which leave, at best, ugly scars. So, if a dishonest tattoo artist tries to extort an impossibly unfair amount for royalties, what recourse has the celebrity or ad agency other than to scar him or herself with tat removal?
And, since many celebrities’ careers depend on their appearance, scarring such as that