I got a tattoo this past summer.
As someone who hates needles and didn’t even have her ears pierced until her senior year of college, getting a tattoo was a big deal. But River City is chock full of phenomenal tattoo artists, and is repeatedly touted as one of the most tatted-up cities in the nation. So after months of consideration, I finally decided to memorialize a childhood nickname in a tiny, minimalist patch of ink.
So I did what anyone else would do: I turned to Pinterest.
Three search terms led to a flood of designs. Pages of artistry scrolled by as I searched for the perfect image. Photographs of gorgeous tattoo art provided a rabbit hole that ate up most of my afternoon.
My lawyer brain, however, started thinking. Who owns the intellectual property rights in tattoos?
Continuing our series on copyright law, we turn to the matter of copyright infringement (a previous topic here, here, and here). An important subject for creative business people of all kinds, popular culture is often a prism through which we can examine the concepts fundamental to American copyright law. The underlying premise is simple: society benefits when authors are given a monopoly to exploit their works. Without such a monopoly, authors would have no incentive to unleash their creative genius to the public, since anyone could simply profit from the hard work of the author. As a consequence there would be no Superman, Harry Potter, To Kill a Mockingbird, or even Star Trek. That last endearing American work has now become the subject of an interesting copyright lawsuit pushing the boundaries of fan engagement and copyright ownership.
With David Bowie’s passing, the world lost a rock icon beyond compare. A musical innovator and stage and screen pioneer, Bowie challenged and expanded our sensibilities, standards and appreciation for his art. Ziggy Stardust, The Thin White Duke and The Man Who Fell to Earth left an indelible influence of originality and creativity on all those who followed and who are still to come.
Over a decade ago, though, this musical entrepreneur gave an interview to the New York Times in which he boldly foretold of the impending death of copyright in the face of progress, innovation and the changing of how music, in particular, is created and distributed:
I don’t even know why I would want to be on a label in a few years, because I don’t think it’s going to work by labels and distribution systems in the same way. The absolute transformation of everything that we ever thought about music will take place within 10 years, and nothing is going to be able to stop it. I see absolutely no point in pretending that it’s not going to happen. I’m fully confident that copyright, for instance, will no longer exist in 10 years, and authorship and intellectual property is in for such a bashing.
Over the holiday break the United States Court of Appeals for the Federal Circuit, a specialized appellate court with jurisdiction over certain intellectual property matters, issued a significant ruling concerning the criteria that the United States Patent and Trademark Office (USPTO) may use to decide whether to issue a federal trademark registration. The Lanham Act–the federal law authorizing the issuance of nationwide federal trademarks–excludes from registration eligibility any mark which is “disparaging” to a person or group of people. Many legal experts have wondered how a law that, by its express terms, calls on the government to discriminate based on the viewpoint expressed by a private person can withstand constitutional scrutiny under the First Amendment’s free speech clause. The Federal Circuit has now ruled that it cannot, holding that the “disparagement” clause requiring denial of a trademark registration is unconstitutional.