The Interested Observer

Copyright law rarely comes to mind when one thinks of tattoo artists, but perhaps its time has come.

One of my friends is absolutely hooked on those “ink” shows on cable. She watches them all: “L.A. Ink,” “Miami Ink” and “London Ink.” In one episode, she noticed one tattoo artist copying another’s design for a customer and she was wondering if there was some sort of copyright protection for original works of art “fixed in the tangible medium of expression.” This phrase most certainly applies to the original works of art “fixed” onto the body.

But it’s not quite that simple. Marisa Kakoulas outlines some of the problems regarding ink and copyright here. She addresses two key issues, first that tattoos are original works of art that typically begin as drawings then reproduced on the human body. In order to successfully sue for copyright infringement, the design must be substantially similar. “Thus,” she writes, “a custom tattoo on an 18-year old supermodel copied onto a 300-pound couch potato would be in violation of the original work’s copyright protection.”

Christopher Harkins, in his article, “Tatoos and Copyright Infringement: Celebrities, Marketers and Businesses Beware of the Ink” in Reed v. Nike, Inc. when an NBA star Rasheed Wallace’s tattoo, designed by Matthew Reed, was featured prominently in a Nike ad. Reed registered the copyright for the design and sued Nike. As the copyright owner, Reed claimed that under ection 106 of the Copyright Act of 1978, Nike infringed three of his exclusive rights: (1) to reproduce the copyrighted work; (2) to prepare derivative works based on the copyrighted work; and, (3) to distribute copies of the copyrighted work for sale to the public. Harkins says the implications of the Reed case are far-reaching. “Unless the tattooist’s potential intellectual property is resolved, the
celebrities and the companies they sponsor may have no alternative. To their dismay, they might need to digitally remove the tattoo from the commercial hot, or cover up the tattoo, thereby showing less skin.”

While there is all kinds of potential for copyright litigation from a variety of aspects from a fellow artist copying a unique design to an unauthorized reproduction as in the Reed case, Kakoulas suggest that the Body Modification community is not as litigious as say, the Recording Industry Association of America. In her informal survey of the tatto artist community she confirmed what she already knew: that this is a community of creative individuals who pursue their art for its own sake and eschew the complications of lawyers, accountants and excel spreadsheets.

The bottom line is that as the tattoo artist’s work becomes more visible, more unique and more mainstream, it’s not necessarily a bad thing to protect designs that were created with great imagination and executed with great care. Registering a copyright or a trademark for a particularly creative design is not giving into corporate protocols but to prevent oneself from the situation Reed found himself in — seeing his work co-opted by Nike, without even considering that there is an artist behind the ink.

Protecting one’s work via copyright (and copyright attorneys by association) could be seen one way to keep the mutli-nationals away from the industry.

I am not sure, but I believe this is an interesting example of a Berne Convention Violation — although I’m not entirely sure. Does kissing a painting in a museum damage the artists honor or reputation? Personally, I think it would enhance it, but who knows if this woman was really overcome with passion for the painting or just did it on a dare. This is why we have rules.

From BBC.co.uk

A woman who kissed a £1.37m painting, leaving a lipstick stain, has been ordered to pay 1,500 euros (£1,074) in damages to its owner by a French judge.

Cambodian-born Rindy Sam told the court in the southern French city of Avignon that she was “overcome with passion” when she saw the painting in July. The plain white canvas, part of triptych by artist Cy Twombly, was on show at the Museum of Contemporary Art. She must also pay a symbolic one euro (71p) to the US artist. The gallery owner will also receive 500 euros (£357).

Restorers have been unable to remove the lipstick and have unsuccessfully used 30 products to get rid of the stain. At her trial in October, Ms Sam said the kiss was an act of devotion to the work of art. “I just gave it a kiss. It was an act of love, when I kissed it, I wasn’t thinking. I thought the artist would understand,” she said.

But Agnes Tricoire, lawyer for the picture’s owner, said the kiss was “as aggressive as a punch,” causing damage that was just as hard to restore. “I do not share the same vision of love. For me love requires the consent of both sides,” she said. Twombly, who was born in 1928, is known for his abstract paintings combining painting and drawing techniques, repetitive lines and the use of graffiti, letters and words. He won the Venice Golden Lion award for his work in 2001.

I just got home from Beijing where I spent the summer at an Intellectual Property Institute at Tsinghua University Law School. On the first day, our International Copyright Professor told us that “information wants to be free” but there are a bevy of laws and treaties to ensure everybody — copyright holders and potential fair-users — get the appropriate piece of the intellectual pie. Then we broke for lunch. I wandered down to the Lotus Center, a kind of vertical Wal-Mart just outside the university campus and was surprised to find they had — all shrinkwrapped in what looked like a little DVD boutique, the new Harry Potter movie that had just opened in the US a few days or weeks earlier. The cost was 10RMB or something like USD 1 and some change. I didn’t get one because half the people in my class had them and were having screening parties in their rooms before class started. Most were of dubious quality and one of them just shut down right near the end. Black screen. I don’t know if this was intentional on the part of the counterfeiters or not, but it was technically an excerpt and if you want to know how the movie ends, you still have to go see the legitimate movie and pay the appropriate and correct parties for the privilege.

Which brings us to the madness that swept the English speaking and ex-pat community in Beijing who were up at dawn on July 21 to get in line to pick up their copy of the new Harry Potter book. In China you can get your Harry Potter book in three flavors: US cover, European Cover (and a bit smaller) and European Adult Cover (more “adult” looking and smaller type). The cost is about 218 RMB, which isn’t bad but the book weighs a ton, as Potter fans already know and I did have my preordered copy from Amazon waiting on my doorstep in the US. So as much as I wanted to read it, I knew I didn’t want to drag the book through three airports on the way back home.

But the story doesn’t end here, as you know. A friend of mine who could care less about things Potter, happened to mention that the paperback version of Harry Potter was already out in China. Wow. Where? On the street outside of our favorite ex-pat student burger joint near the campus.

And sure enough. For a mere 50RMB (but I hear you can bargain down to 40 or maybe 35 if it’s late in the day and really really hot) you can have a nice paperback version slapped together probably in some dingy sweatshop somewhere in Northern Beijing. And I admit, I had a look, although I pretended I wasn’t looking. I looked at the rest of the counterfeit books on the dealer’s wagon — including one of the sorriest mis-translations of Bridget Jones’ Diary I have ever seen. I can only imagine — well no, I really can’t imagine what teenage girl with a few years of English under her belt translated this copy after answering and ad in the back of a newspaper. Or similar. The Potter book is well bound, but the paper is rough and who knows if the ink could survive a water spill or the turn of a page. And after paging through other pirated English language books, I couldn’t help but wonder if I would be reading a) a reliable translation with b) the actual plot. China’s lone English speaking news channel CCTV9 was running breathless stories about those evil counterfeiting bastards selling fake Harry Potter books in India and Malaysia and mentioned that the book would come out in China –in Chinese — later this year. The implication being that there are no counterfeit copies to be had on the mainland. No sir. Everything on the up and up here.

And as they were speaking counterfeit copies were being snapped up all over the country.

Perhaps most amusing to Americans used to those “copy this movie or CD and we’ll hunt you down like the dog you are and kill you — or at least sue your grandmother for infringment” messages we hear from the MPAA and the RIAA is the wild west atmosphere of all this. Even the official Foreign Language Bookstore was selling copies of the movie right there in the store alongside the legit copies from the US and the EU.

This whole episode makes all of us who grew up in the age of the digital download think twice. Sure, information wants to be free and quite frankly I’d like it to be free but these fake books remind me of the muddy, low-fi songs that filled the old Napster directory that ultimately filled my computer with more spyware than great music. Somebody owns the rights and that person deserves to get paid. Maybe one day far, far away from now (if JK Rowling ever runs out of heirs and assigns, which is probably doubtful) Harry Potter will be in the public domain, but even lovers of free information think copyright should extend at least one day longer than the original publication date.

PublicResource.org, a new non-profit dedicated to the creation of public works projects on the Internet took a clear-eyed look at the Smithsonian Institution’s amazing repository of photographs available on an ecommerce site Simthsonian.si.edu.

The organization takes the position that “if the Smithsonian is ‘America’s Attic,’ then these photos are our collective scrapbook.” The Smithsonian doesn’t think so, selling its photos with strict copyright strings prohibiting almost any duplication of any kind, even in some cases where there is no copyright by the Smithsonian.

PublicResource looked to the Smithsonian charter, specifically 28 USC 41 which charges the Smitsonian with the “for the increase and diffusion of knowledge.” The site also points out that 17 U.S.C. § 105 that [with subtle exceptions] all works of the U.S. Government are in the public domain. (read the legal arguments in more detail here.

To open up the discussion and examination of the public domain status of these photographs, all 6,288 photographs from the Smithsonian have been uploaded to Flickr, organized into an eBook and several other distribution channels.

The goals of the project are to encourage the Smithsonian to adopt a online distribution policy more closely aligned with tis mission and increasing distribution of public domain materials on the Internet and to determine what images are clearly in the public domain and should be placed on the net for use without restriction.
Meanwhile, have a look at the photos. They’re amazing.