Tattoos and IP Norms

Part I of this Article offers a brief history of the practice of tattooing—beginning with its widespread use in early civilizations, then turning to its colonial reincorporation into the West, and the recent emergence of the “tattoo renaissance.” This Part will also introduce the basic structure and vocabulary of the contemporary tattoo industry. After establishing the doctrinal applicability and practical irrelevance of formal copyright law to tattoos, Part II catalogs the norms that structure the tattoo industry. To develop this descriptive account, I conducted fourteen in-person qualitative interviews in early 2012 with tattooers throughout the United States, identified through snowball sampling relying on existing industry contacts.20 In terms of geography, gender, experience level, work environment, style, and clientele, these interviews capture a diverse, if not necessarily representative, cross section of perspectives within the tattoo community. These interviews revealed five core norms. First, tattooers as a rule recognize the autonomy interests of their clients both in the design of custom tattoos and their subsequent display and use. Second, tattooers collectively refrain from reusing custom designs—that is, a tattooer who designs an image for a client will not apply that same image on another client. Third, tattooers discourage the copying of custom designs—that is, a tattooer generally will not apply another tattooer’s custom images to a willing client. Fourth, tattooers create and use predesigned tattoo imagery, or “flash,” with the understanding that it will be freely reproduced. Finally, tattooers generally embrace the copying of works that originate outside of the tattoo industry, such as paintings, photos, or illustrations. In some ways, these norms unintentionally echo familiar concepts from copyright law, but they differ from formal law in important respects as well. Part III offers a number of complementary explanations for the content of tattoo industry norms and the industry’s reliance upon them. Both the culture and economics of the tattoo industry gave rise to its particular set of norms. Tattooers share a disdain for authority and a history of harsh legal regulation that renders them generally hostile to the legal system. Perhaps more importantly, as a deeply client-driven enterprise, the tattoo industry is sensitive to consumer expectations. Those expectations provide strong incentives for the development of norms in order to preserve the industry’s collective interest in the continued viability of the market for custom tattoos. Finally, tattoo norms also erect barriers to entry to the increasingly crowded field of tattooers, revealing the guild-like nature of the industry. Part IV concludes by considering the broader lessons the tattoo industry offers for intellectual property law and policy. The tattoo industry’s success reveals the importance of customizing creative goods to deter widespread copying and of bundling easily copied creative goods with difficult-to-copy personal services