Damning the Ink: Tattoo Artist vs. Nike & Rasheed Wallace

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 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.

Image of classic 'Mom' tattoo with a copyright notice below it.
Copyrights for Tattoos?

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.

6 thoughts on “Damning the Ink: Tattoo Artist vs. Nike & Rasheed Wallace

  1. Lara

    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.

  2. Samuel John Klein

    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.

  3. Tracie

    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? 

  4. Cheri

    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.

  5. Pariah S. Burke Post author

    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.

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