Sunday, October 13, 2013

Who Owns Your Tattoo?

Anthony's arm

This isn't a trick question.  This was the gist of an LA Times article last week.   I was already sensitized to this issue by a tweet from Mark Meyer over the copyright of the Korean War Vets Memorial.

The comments in the article he linked to, made it clear that people have very strong opinions about things they know nothing about.  Well, they are very ready to spout off without knowing any of the details involved.

There are legitimate arguments on both sides of this, and the tattoo example pushes this into serious conflicting rights, but when people start off just saying, "This is stupid," it's not a good sign.  They have a gut reaction - which probably has some legitimacy - but that's just a feeling and they haven't thought it through enough to know if their feeling is appropriate let alone to explain that feeling intelligently to others.  Often, it appears, the feeling was based on ignorance of the facts.

My photo,* not the one in question, which is much better

Below is Mark Meyer's original tweet about the rights to the image on a US postage stamp of the Korean War Vets Memorial.
[*sorry, I had the wrong link to the photo before.]

Mark is a very good professional photographer who lives in Anchorage.  As I read through the hostile comments he mentions,  it became clear to me that there are two key issues here regarding ownership:

1.  Who owns the physical object (a sculpture, a painting, a book, a cd, etc.)?
2.  Who owns the copyright to that object?

This has been an issue for artists.  Someone buys a painting for $1000.  Ten years later, the buyer sells it for $40,000. Should the artist get a cut in the resale value?

There's little debate that the buyer owns the object, but does he then get all the appreciated value of the object as the artist becomes known?  I'm trying to figure out the underlying world views that separate those who think the artist ahouls and those who think the buyer.

The capitalist would say there was a fair trade, and now the object and its potential value goes to the buyer.   After all, the artist had the choice of selling for that price or not.   But did she?  Perhaps her rent was due when the money was offered.  And even though the object sells for $1000, she's only getting, after deducting materials expenses, $5 or $10 per hour.  Of course, it's even much less if we count the time and money spent on her art school degree.

But it's not so easy.  Capitalists also believe in copyrights and patents.  Those rights are even enshrined in the US Constitution.    That's why Samsung and Apple have been in court recently and why (legal) drug prices are so high.  Drug companies argue that all the work that went into developing the drug needs to be recouped or there will be no incentive to develop new drugs.  Though consumers might question how much of a profit and for how long should the drug makers get, especially when they own the patent on the only drug that cures a particular disease, thus leaving some people with the choice of paying (if they can) or suffering or even dying.

Doesn't the artist have the same claim to recoup the investment?  Sometimes, according to the California Arts Council:
Civil Code section 986 (California Resale Royalty Act) entitles artists to a royalty payment upon the resale of their works of art under certain circumstances. 

Those who would put fairness as their highest value would probably argue that the buyer really owes the artist a portion of the appreciated value. The law may give the buyer the right, but human decency requires the buyer to give a share to the buyer. After all, the buyer merely made a purchase while the artist worked hard and long to create the piece.  But that too is an assumption.  What about an artist who pays his lunch bill by drawing a quick caricature on a napkin?  Or an athlete who autographs a ball?  One might argue it's different if it's for free, for a fee, or in payment of something else.  And one could argue that an art dealer, who spends a lot of time looking at art and buys a lot of paintings from a lot of aspiring artists, is making an investment to help the struggling artist, but also taking a risk.  Most of those purchases aren't going to gain value and the winners help pay for the losers.  And that putting the piece in his home or gallery will cause others to notice and buy art from that particular artist. 

Open source advocates offer an alternative to the capitalist emphasis on individual rights and ownership.  While capitalists advocate that competition and personal greed stimulate innovation and the economy, open source advocates argue that sharing and community spur innovation and spread the fruits of innovation better.  They see copyrights and patents and proprietary software as obstacles to human advancement.   This might explain the commenters who felt that the US government use of the photo of the Korean War Vets Memorial (the Post Office had the permission of the photographer) was a use that benefited the general public.  I'm not sure how this argument applies to the tattoo dispute. 

There's an issue here that you might notice underlying all this:  power.  In theoretical capitalism, a fair market is one in which both parties have the power to walk away from a deal they don't think is fair.  A cancer victim doesn't have much bargaining room with a drug company if the company owns a patent on the only drug likely to save his life.  (Though there have been organizations that have bargained for classes of poor patients to get discounts on such drugs.)

And power is an issue when we get to copyrights and patents.  In the case of the artist who created the Korean War Vet Memorial sculptures, according to the comments in the article Mark cited, the US government (maybe the US Park Service, but I'm not sure; it was the Post Office that got sued)  did not include the copyright when they signed the contract with the artist.

And that's the rub for many of the commenters.  They couldn't, it seemed, mentally separate the object from the copyright for the object.  Essentially, this argument says "You own the object for your personal use and enjoyment, but if you then market it to make a profit, I get a share in that profit." Arguments (in the comments) that the govrnment could have bought the copyright when they bought the object seemed to fall on deaf ears. So did arguments that they could have negotiated with the artist before commissioning the stamp. Mention of musicians getting paid every time their music is played didn't sway them either.  The basic response was, if you buy it, you should be able to use it how you want.  Especially the US government, which, apparently, made millions off the image in sales to stamp collectors.

Again, it gets down to power.  How many artists have the power to insist on an extra charge for the copyright and then fight for their copyright, even when they have it?  Only those who have enough knowledge and money to hire an attorney or can get one to take their case on contingency.


Laotian Dragon Tattoo  Shot With Permission
But what happens when the art is imprinted on your body?  What rights does the tattoo artist have over money you earn because of the tattoo?  What rights do you have over photographers or others who make money off your tattoo?  Legally, it would seem that the same copyright principles prevail, with the warning to make sure they come with the tattoo.  This came up, after I read Mark's tweet, in an LA Times artcle:  
Late last year, for example, Stephen Allen, a tattoo artist, sued video game maker Electronic Arts and former Miami Dolphins running back Ricky Williams over a tattoo Allen put on Williams' bicep. The tattoo appeared on the cover of EA's "NFL Street" video game. Allen claimed that the reproduction and display of the tattoo violated his copyright.
That case was dismissed in April at the request of the plaintiff, but because so many NFL players have tattoos, it got the attention of the NFL Players Assn. NFLPA officials began advising players to get copyright waivers from their tattoo artists. George Atallah, an NFLPA official, told Bloomberg Businessweek that the union recently cautioned its players: We know you love your tattoo artists, but regardless of whether you trust them, regardless of whether there are legal merits to the lawsuits that we've seen, just protect yourself.
There are a lot of conflicting values and rights that come to play in this.  The contentiousness is only exacerbated by the commodification of everything.   The sculptor wouldn't be suing the Postal Service if they weren't making millions off his art work.  And the tattoo artist wouldn't have sued if his tattoo hadn't been used so prominently to market the video game.  I doubt I have much to fear about my own use of my own photos in this post - of the tattoos and of the Korean War Vets Memorial - because I'm not commodifying the originals. 

I continue to be amazed at how many people feel the need to voice their opinions so strongly about topics they know so little about. For those who want to be informed when they voice their opinion on copyrights, Mark posted another tweet with a link to an article called, "Why Copyright Infringement is Theft."

Politicians sometimes complain about being targeted by interest groups based on a vote on a particular bill.  They might argue that though it was called the Help Poor Widows bill, there were provisions in the bill that did exactly the opposite.  Like most situations that become controversial, the simplistic first reaction often doesn't take into account the details.  At times, we may have sympathy for the holder of the copyright.  At other times we may not.  It depends on the details of the situation. Unfortunately, in these days of tweets, most people don't get into those details. 


  1. Say I buy a house for $100,000. Fifteen years later, my kids are grown and we want to downsize to an apartment. The house sells for $250,000. Am I supposed to send part of the increased value to the people I bought it from? Um, no.

    Similarly, the artist sold the painting for what it was worth at the time. The new owner could end up with an unpopular and worthless painting years down the road; should the artist return all or part of the purchase price to the buyer in that case? Um, no. Likewise, the new owner owes the artist nothing if the value increases. It's the buyer's investment, not the artist's.

  2. Albert, I think your response is a common one, and similar to the ones that got Mark Meyer upset. But it's not not necessarily legally accurate.

    In this case, I don't believe anyone is saying that the US government can't sell the monument. They own the object and I didn't see anything about the artist's rights if they sell the object. Only if they use its image for an additional profit, which they did. The commenters in the linked post cited the court case to say that the artist explicitly kept the copyright when the objects were sold to the government. So, the analogy to your house doesn't really fit here.

    Visual artists are starting to say they that like authors and songwriters who do get paid when their idea (not the object) is used to make additional profit, they too want a share. That's the point of the California law mentioned in the post. Ball players even get paid when their images are used to advertise products. Visual artists want the same rights to their ideas. It's why copyrights are in the US Constitution, to give people the ability to profit form their creations.

    You can do what you want with your old vinyl albums and cds and tapes, but if you play them on the air or in your commercial movie, you have to pay royalties to the owner of the copyright. Michael Jackson is said to have paid $47 million for the copyright to 200+ Beatles songs in 1984 and that purchase is worth billions now. Mad Men paid $250,000 to play one Beatle song in one episode..

    Visual artists are just saying they want the same rights as these other artists.

    Now, about your house. No, you don't owe the sellers anything, unless they put something in the contract you signed that required you to share any appreciation. If they did, and you read the contract carefully, you probably wouldn't have signed it.

    If a famous architect designs your house, she may not sell you the right to use them unless she keeps the copyright. . It's all about what the two parties negotiate.

    My sense, as I said in the post, is that in the market, this is about power. The more the buyer wants the object, the more the seller can extract in the contract.

    Is this a good thing? Yes and no. Our founding fathers saw copyrights and patents important enough to put into the constitution. The more we commodify everything, the less sharing and cooperative everyone will become. Every transaction will require a lawyer so that someone else doesn't profit from your kindness. Say, you share your grandmother's secret brownie recipe with a neighbor and he turns it into a multi-million dollar business and doesn't acknowledge you in any way. I suspect that at the very least you'd be miffed. You freely shared, so the neighbor could make some cookies, not millions of dollars. The law offers some protection from the greedy, but it also pushes everyone to think more in terms of legal rights than general decency.

    Thanks for your comment which gives me the opportunity to expand on the topic.

  3. The deal with copyrights is that when it comes to movies, cd's, xbox things of this nature there are mention of the copyright. These products make you aware of who owns the copyright of the product in question. However unless there is a copyright agreement between you and your tattoo artist it could be implied that you own the tattoo.

    The tattoo artist arguing that the tattoo led to more sales of these games needs to understand that people are not buying the game for the tattoo. Therefore these tattoos do not lead to more sales of the game. Where copyright should come into play is if someone brings a video game to their artist and says I want this tattoo. If tattoo artist band together, and said that for a replica tattoo of a sports athlete, musician, actor, or actress then the original artist gets a royalty for that work. They would need a union to make this work. However the artist should include a copyright for their work, and this should be signed by customer before the commission of the work being done. Then there wouldn't be any questions about the owner of the work.


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