Th-Inking About the Law: Tattoos Leaving Indelible Marks on Black-Letter Principles & Coloring Our Perspectives

Tattoos, one of the oldest art forms in the world, are all over the legal news in recent years. The news runs the gamut from a tattooist suing a movie studio over replication of Mike Tyson’s facial tattoo in The Hangover II to artists looking to gaming companies for compensation for reproduction of tattoos appearing on video game avatars of professional athletes, which even made it into the Wall Street Journal and been the subject of court decisions earlier this year and late last year. Even more recently it has included a Larry Bird’s mural being altered, at his request, to remove tattoos an artist had added for a modernizing flourish. (BTW, speaking of murals, the Chuck Wepner mural I had written about has been painted over). It has also included law enforcement receiving criticism from many directions for “Photo-Shopping” tattoos out of pictures of suspects used in policy photo arrays.  Just recently, Cardi B was sued for using a photo of a tattoo on her album cover. Though the examples above may most resonate with a US domestic audience, the copyright and other legal issues emerging from, and connected to, tattooing are being considered worldwide. Consequently, it seems like an area worth exploring here.

The flurry of recent interest is somewhat interesting, given that it appears that tattooing has been around for some time, as explained by both Professor Perzanowski and others. Archaeologists have found 12,000 year old tattooing tools, and a 5,000 year old Iceman found in the Tyrolean Alps was found to have over fifty-five tattoos.  (Other mummies from Egypt, Eurasian, Peru and elsewhere, dating to ages ranging from 2100 BCE to 500 BCE to 900 CE, have all shown evidence of tattooing, from “‘dark, blackish-blue pigment applied with a pricking instrument, perhaps consisting of one or more fish bones set into a wooden handle,’” to “elaborate depictions of animals on the arms and back,” to “ornamental tattoos depicting stylised apes, birds, and reptiles on the forearms, hands, and lower legs,” as Professor Perzanowski noted) Ancient (and successive) cultures, especially in New Zealand, India and Japan, used tattoos for artistic, religious or social reasons.  In fact, “tattoo-ing” entered into the English language, and re-entered the greater Western consciousness, from the South Pacific with the 1769 entry in Captain Cook’s log concerning “tattowing” occurring among Polynesians. (I say, re-entered because the “Picts” were pre-Roman inhabitants of what is now Scotland, and got their name from the tattoo-painted bodies, as later de-“pict”ed in the 2011 film The Eagle).  From the South Pacific, tattoos’ popularity spread to the United Kingdom with the appearance there of Omai following Cook’s return in 1774. In the United States, the first commercial tattoo shop in the United States opened in New York City in 1846, and commercial tattooing moved forward more rapidly after 1891invention in New York of the tattoo machine.

“Once the mark of sailors, convicts, and circus performers, the tattoo has infiltrated mainstream society,” Professor Perzanowski noted. That is certainly true in the United States, where the percentages of people with tattoos has risen dramatically (both generally and in certain age groups), as has the number of people getting tattoos removed. The simpler tattoos of the past have given way to more and more elaborate ones, ranging from those essentially fully covering one’s face or body or both to the new Triple Mike to Lonzo Ball’s impressive Civil Rights sleeve.

This is not only big business money-wise, but tattoos are getting the attentions of thinkers and thought leaders …