Sunday, October 21, 2012

Perzanowski on Tattoo IP Norms

Here's a fun paper for a Sunday afternoon: in Intellectual Property Norms in the Tattoo Industry, Aaron Perzanowski (Wayne State, currently visiting at Notre Dame) argues that despite the availability of copyright protection, the tattoo industry relies on "a complex set of social norms enforced through informal mechanisms" to resolve disputes over copying.

As Perzanowski notes in this draft article, other scholars have examined how IP-like protections can be enforced through social norms in areas such as roller derby pseudonyms, magic, cuisine, and stand-up comedy (all of which build on foundational work on law and norms by Robert Ellickson). But he argues that tattoo industry norms are particularly interesting because they are "the first example of market-driven informal alternatives to intellectual property law that emerged despite fully applicable formal protections," and because there is "a more complex set of relationships" that includes clients and copyists outside the industry.

Perzanowski assumes copyright protection is available for tattoos, but he does note that the extent of this protection is not completely clear—in last year's dispute involving Mike Tyson's tattoo, treatise author David Nimmer argued that copyright does not cover tattoos, although the district judge apparently called these arguments "silly." (I haven't looked into these legal issues myself.) In any case, copyright lawsuits are certainly rare in the tattoo industry. So what norms govern copying?

Based on over a dozen in-person interviews with tattooers, Perzanowski explains that tattooers willingly copy images from outside the industry and that they create pre-designed tattoos (known as "flash") with the understanding that they will be freely reproduced. But norms discourage reusing or copying of custom tattoos—unique designs created in consultation with clients—even though "[f]ormal law would treat most custom tattoo designs as works created by the tattooer alone" rather than works made for hire or joint works. If a client asks for a custom tattoo from a tattooer's portfolio or from another tattooers' design, the client will generally be told, "No. That's someone else's tattoo."

Copying sometimes occurs despite these norms, and "[i]n most of these stories, the internet played a role in enabling both access to the original tattoo and detection of the copy." In these cases, negative gossip can often have an important effect in the tight-knit tattooing community. One tattooer explained, "Socially, you’re screwed. In the community, you’re screwed. . . . Being part of the community is a really important part of your growth." But direct copying in "street shops" is more common, and it is of course hard to tell how effective anti-copying norms really are based solely on the anecdotal evidence presented here.

Regardless of whether copyright protection could be effective for policing tattoo copying or whether the anti-copying norms are really effective, it does seem that that there is a healthy market for custom tattoos in the absence of significant copyright litigation. So can copyright-based industries learn anything from tattooing? Perzanowski argues that tattooing is different because it emphasizes customization and service, and that some copyright holders have begun to shift to more customized experiences that cannot be easily replicated, such as online multiplayer games or 3D movies. But I am not convinced that a focus on service and customization is really a "path forward for other creative industries frustrated by the ever-decreasing value of the copy." Many people who want a tattoo are willing to pay for a high-quality, unique design—just as many people would rather have a hand-done, unique painting in their house than a copy of a famous painting. But few people want to watch a unique movie—they would rather see the same movie that their friends are seeing, and the analogy between the service of tattooing and the "service" of a 3D movie seems strained. Still, I think Perzanowski is right to conclude that the "assumptions upon which we base intellectual property law are empirically untested and myopically focused on a small handful of industries with legacy business models," and I enjoyed his expansion of the IP lens to tattoos.