As reported below (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 wants damages for the unlicensed use of his artwork. The tattoo can be seen here in this photograph from the Detroit News.
Respondant, Uncle Bill, writes in the comments to the iamPariah.com post:
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 resulting from tattoo removal could result in loss of work, thus loss of income, and thus tortious litigation against the tattoo artist.
The world of tattoo copyright and litigation in the U.S. could get as dirty as a Shanghai needle. Consumers, from the average Bike Week carouser to Angelina Jolie, will shy away from complicated, potentially litigious entanglements like getting a tattoo.
If the courts find in favor of Matthew Reed, committing his damaging ink damages to ink, it will set a precedent that commercial imagery that just happens to reveal the tattoos sported by a paid spokesperson is infringement. And that will open the flood gates for similar litigation from every artist whose ink has ever appeared on a celebrity arm or back (and every wannabe artist who thinks he can make a name for himself by falsely claiming authorship of famous ink). Moreover, it will severely damage the tattoo industry in the long term.
Reed and other tattoo artists need to ask themselves if they want to go back to servicing only bikers and Marines.
First of all, I can see both sides here. No doubt.
My best friend is a tattoo artist, I’ve worked around numerous tattoo artist, and am heavily tattooed myself…I have a lot of respect for tattoo art in the same manner I have respect for any other form of creative expression.
But as a tattooed person and one who respects people who’s job it is to tattoo others, I don’t agree at all with this lawsuit.
What I do with my tattooed body is MY business. I pay the artist for his work, and that service is complete. Mr. Reed needs to let it go. He got paid, and nobody has copied his work by using it in an ad. It’s a compliment that his art work was central to an ad like that. I don’t see the harm in it, I see him being petty and ego driven…and I find it sad.
If any of the people who tattooed me pulled some shit like this on me, it would mark the official end of my desire to continue getting tattooed. It’s THAT distateful to me.
Tattooing is unlike any other form of art in that you forever leave your work to walk on another human being for the rest of their life. It’s an emotional, intimate exchange that needs to be treated with respect, and if THAT amazing fact isn’t enough to massage Matt Reed’s ego, what ever could?
How about some basic respect for the PEOPLE who allow themselves to be the permanent bearers of your talent?
Do I think it’s a shame that artist’s credit wasn’t given? Yes I do, and I think that could have been rectified without the need to sue for $$$. A simple bit of credit would have been an amazing bit of advertising that Nike essentially paid for. Again, if that isn’t a compliment and an ego stroke, I don’t know what is.
The logic here is fairly clear and makes a good deal of sense. I can’t help but agree.
Every artist who works commercially in this manner is vulnerable to this sort of indirect exploitation. Even I, once, designed a drawing that was meant for someone to use as a tattoo. Where is it and who is it on? Who knows!
This, to me, seems to be one of the ideas behind body art. In a way, one can’t help but give away a certain sort of “right”, if one must view it as such. A tattoo exists on an autonomous person who, once out from under the inker’s needle, will go out and do whatever they want.
Admitting that the inker has residual rights over thier tattoo designs in this way is almost like saying that the artist has bought a piece of someone’s body and has some say in where and how it gets used, which is kind of insane. No one has ever, as far as I know (IANAL) given up the exhibition rights to, say, an arm just because they’ve let someone put thier design on it, that bozo who auctioned off part of his body on eBay for an ad notwithstanding.
Just to show how bizarre this line of reasoning is, extend it to other contrbutors to that player’s station in life. He wasn’t born a talented, basketball-playing adult. Why not have everyone who contributed to making him what he is, the schools and the mentors, sue for thier due. After all, it’s thier talent he displays whenver he excercises his.
Actually, it’s not just bizarre. It’s kind of gently insane.
What’s next? Are doctors (plastic surgeons) going to sue when an actress makes millions from exploiting and showing off her boob job? Are hair stylists going to claim rights over their hairstyles?
love the sexy mullet!!!
The news I’ve heard is, The only thing Reed is really seeking is a public apology for simply not asking for the copyright authorization. Any financial damages are to go to charity. The point is the apology not the $$$. Its the principle.
For Reed it may be the principle, but for the rest of the world, it’s the precedent.
The legal system in the United States is called “precedent law,” meaning that every decision a judge hands down, alters the interpretation of law and sets a precedent by which later similar cases will be decided. No civil lawsuit is insular. Every new case represents the possibility of opening the flood gates to numerous similar cases–and, of all but pre-deciding their outcomes.
It’s because of the reality of U.S. precedent law that defendents in large civil suits fight so vehemently. Even if, for example, a gun manufacturer recognized and wanted to admit liability in a case where the negligence of one of their employees or agents contributed to the use of their product in a wrongful death, the gun maker can’t admit to it without setting a precedent that it, and every other gun manufacturer, can be held liable in future such cases–whether those cases have genuine merit or not. These companies don’t necessarily refuse to pay victims because they don’t want to, they refuse because paying once, admitting fault once, will become the single largest piece of evidence in any future actions against them, and predisposes the judgement in future cases.
By and large, precedent law is a good thing. Civilly, U.S. citizens and business entities are better protected than in countries like France and England where prior court decisions do not factor into civil trials. Like any system, however, our precedent law system is flawed and can be taken advantage of.
To wit: the woman who sued McDonalds because she burned her tongue on their coffee. In that case, the large red and white “Caution! Hot Coffee” warning on the prominently displayed coffee maker was deemed insufficiently obvious to prevent injury. In that case, prior decisions against manufacturers with product defects were cited as precedent, which, in part, influenced the court’s decision in favor of the woman who lacked the common sense of a squirrel. Worse, that case set an even greater precedent that can loosely be interpretted as holding a manufacturer or supplier liable for virtually anything not explicitly warned against. (This sort of thing is why America is being dumbed down and padded up into a Fisher-Price-safe country.)
Getting back to Reed and Wallace, Reed’s intentions and whether he is honorable are not at issue. I don’t know Reed, but I’m willing to give him the benefit of the doubt that he’s a nice guy who just hasn’t thought this whole thing through.
Reed is mislead, but his attorney obviously greedy for headlines. Any competent attorney recognizes the danger inherent in establishing a precedent wherein intellectual property laws can be applied to individual human beings’ bodies. Intellectual property laws should never be mixed with, or brought to bear against, the Constitution and the Bill of Rights.
Unfortunately, that’s exactly what Reed v. Wallace does: It seeks to supercede civil liberty with property law–relevant to a black man no less!
To whom Reed wants any monetary award sent is completely irrelevant. What matters is the case itself and the precedent it seeks to establish. Reed has rights, yes. As a visual and prose artist myself–a professional intellectual property creator–I understand the value of one’s original work. I also understand Reed’s position that his creations have value and should be, at least to some degree, under his control; if his original creations contribute to someone else’s profit, Reed should be compensated in some way. And, he was: Wallace paid for the service of receiving a tattoo, and, inherent in the act of indelliblly imprinting ink inside human skin, is the customer’s implicit right to wear the artwork throughout the remainder of his life, in all his daily activities. Reed sold the tattoo, he did not license it to Wallace as rights-managed imagery.
Even if one believes an artist has a right to additional compensation for the display of his already sold artwork, artwork that has been rendered as permanent part of another human being must be an exception.
The artwork may be Reed’s original creation, but it is not on a canvas, t‑shirt, or side of a building; it’s on a man’s skin. Claiming rights and damages from third-party entities who casually displayed that man’s skin, inclusive of the tattoo or not, is Reed trying to claim ownership of a part of a human being.
This country fought a war over that very topic. Hopefully the precedent set by the U.S. Supreme Court at that time will be employed to defeat Reed’s grossly mislead and incredibly dangerous contentions at this time.