A limitation in our language invites a question – if you were to hear someone referring to "My tattoos", would you assume they were referring to body decorations that they wear or the art works that they've created? Is it the ownership, or the authorship that is implied by this phrase?
In a previous column, I referred to tattoo "thievery", i.e. images replicated or directly stolen from the internet. Currently, the focus on tattoos and copyright is directed towards the soon-to-be-released film, The Hangover 2, a US comedy sequel starring Ed Helms as a character who awakes from a night of drunken revelry to discover a brand new tattoo on his face – a tattoo that copies and clearly parodies Mike Tyson's Maori inspired tribal pattern. I say it's clearly a parody because Tyson himself appeared in the film's predecessor from 2009's The Hangover, and both of the movies have an obviously comedic nature. The faux tattoo of the film is not designed to function in the same way as Mr Tyson's actual tattoo, which is more in keeping with the Maori culture it references. Tyson's facial tattoo is deliberately confrontational, reflecting his self-assumed status as a modern warrior. The seemingly identical tattoo of the film is quite different in symbolism as rather than being a deliberate statement of implied aggression, the movie positions the tattoo as an accidental souvenir of a thoughtless mistake; it represents a moment of stupidity.
The use of a tattoo in this way is both insulting to collectors like myself and tattoo artists, the vast majority of whom run their business practices in a moral and professional manner and would not allow a situation such as the one depicted in the film to arise.
Previous examples of tattoos protected by copyright are few and far between but both piercer Elayne Angel and alternative model Amina Munster have documented instances, Elayne for her distinctive wing design and Amina's "Dead Men Tell No Tales" chest piece. Whilst these pieces are individual and personal to their wearers, I wonder if they are the right people to own the copyright? The designs are not the work of their owners, but were tattooed by Bob Roberts (Hollywood CA) and Tim Kern (NYC) respectively.
The realities of copyright law and the systems that surround it are quite alien to the majority of tattoo enthusiasts and artists. Tattooing has always taken care of its own business without the need for outsiders so it's the moral and cultural issues that are most relevant. It's rare that a tattoo artist is afforded the opportunity to do exactly as they please, a human being is not really a canvas, but instead, a kind of patron, commisioning and funding the work that a tattoo artist will ultimately create – a work that is the vision of the artist, but a vision that exists between preset boundaries dictated by the customer. The conception of the idea is just as easily the property of the customer as of the artist, perhaps under the first example both could be considered co-authors?
In the next suggested definition, that of authorship and re-authorship also confers the notion of artist and client taking the roles of co-authors, the idea shifting from client to artist, acknowledging the role of the commissioner but moving the idea onwards.
In the third idea, the bringing together of pre-existing ingredients to create a new whole. You can certainly recognise the working practice of a custom tattooer, working with a library of tattoo images and emblems, combining traditional elements with outside influences to create something new, something that reflects the customers' directions.
So perhaps it’s understandable that it is Victor Whitmill and not Mike Tyson that is pursuing Warner Brothers in court. Tyson's tattoo, whilst initiated by Tyson and belonging to Tyson is created using ingredients from traditional tribal tattooing and came about through the work of the tattooer.
And that leads us to yet another concept of authorship; Karl Marx believed that, that which is created through the use of labour remains the property of the one who has laboured.
So while tattooing will always be an art form that borrows and samples from what has gone before, it’s not a reason to infringe legal or moral copyright. If a new-to-tattooing person comes to you with a photo from a magazine or a paintinag from the internet and requests a copy, respect the labour of the one that made the original and alter, change and redraw until you've added enough of your own labour to be able to take as much pride in it as you would if it were your own. Tattooing has always been a self-regulating industry so respecting an original happens and will continue to happen purely through personal morality not through deference to law courts.
The film industry needs to find its own morality, but while it hasn't, good luck to Mr Whitmill, who won the initial case and is now entitled to return to court to pursue damages.