Academic Journals

 
 
 
 
The following collection of articles come from a rang of peer-reviewed academic journals and cover a variety of topics around the practices and procedures in body/art. These have been compiled for those wishing to explore some broader fields of study as well as those wanting to keep up to date with the latest thoughts, sociological research, historical interpretations and viewpoints on body/arts’ appearance around the globe | Peer Reviewed Discussions On Body/Art
 
 

Tattoo[ing] In Early China

introduces various modes of tattoo as described in several types of pre-modem Chinese texts...

 
Ancient-Chinese-Tattooing-An-Historical-Overview-Of-The-Practice_The-Tattoo-Art-And-Education-Guide_The-Tattoo-Concierge_www.TattooConcierge.com-1024x512_The Artists Choice
 
Although the study takes a widely cross-temporal view, covering texts from the Zhou to the Ming dynasties, its organizing focus is the twenty-five entries on tattoo found in the ninth-century miscellany, Youyang zazu. The author of this work, Duan Chengshi (c. 800-863), is remarkable because of his extraordinary interest in all types of tattoo, but particularly for his meticulous description of the voluntary decorative tattoos of his contemporaries. Given the fact that in China permanent body-marking was highly stigmatized, and cause for social ostracism, the information given in the Youyang zazu and other texts on tattoo is thought-provoking and valuable Reed, Carrie E., The Journal of the American Oriental Society
 
 
An aggressive Lord who wants to rise in power will be forced to employ his own people. They will then love me with the love of parents, and will find my scent like that of the iris and epidendrum. They will turn from their lord and look upon him as if he were tattooed, and as if he were their sworn enemy Xun Qing (ca. 313-ca. 238 B.C) [1]  
 
TATTOO IS REPRESENTED IN SEVERAL types of early Chinese texts, including early prose works such as the Shang shu historical works such as the Shiji and later dynaslic histories, dynastic penal codes, zhiguai and biji works and miscellanies. This paper introduces a selection of representative passages from Chinese texts that mention tattoo and is intended partly to serve as a starting point for further study of this largely neglected topic. The twenty-five entries on tattoo found in the ninth-century miscellany, Youyang zazu are both stimulus for and focus of the paper; it is, in fact, their content that determines the types of tattoo to be considered. The author of Youyang zazu, Duan Chengshi (c. 800-863), deserves our gratitude be cause of his extraordinary interest in all types of tattoo, but particularly because of his meticulous description of Tang-dynasty figurative and textual tattoo. His beautiful descriptions of full-body tattoo raise many questions, questions of immense interest for students of Tang life and culture, as well as of informal narrative literature. What do we learn from the entries in a collection of informal narratives, such as a miscellany, that we do not learn from other types of texts? In what way does this collection of entries augment information already available? Besides communicating fascinating and educational data about the socio-cultural world of his time, Duan’s tattoo entries may reveal something of Duan’s own interests and world-view in general. Their place in his larger collection is of interest–why did he place them where he did, in Juan eight, with entries on dreams and lightning?
 
For the sake of organizational convenience, the paper treats separately several types, or modes, of tattoo, with some inevitable overlapping of types. The specific Youyang zazu entries that represent each type are presented after a brief discussion of that type. Since the pieces do not appear in their original order, I have given the entry number of each for easy reference.
 
The types of tattoo that are most often mentioned in early Chinese sources are: tattoo as one defining characteristic of a people different from the majority population, tattoo as punishment, tattoo of slaves, tattoo as facial adornment, tattoo in the military, and figurative and textual tattoo. Although the last two types are not always related, in Youyang zazu they seem to be taken up together and so they will not be treated separately here.
 
As this study takes a widely cross-temporal view, and since the original texts describe tattoo of many peoples and places, naturally the terms found used for tattoo vary widely as well. There is not great consistency in terminology; it is not the case, for example, that tattoo as punishment is always called by one name and tattoo as decoration by another name. Nor is it the case that one term is exclusively used in one era and a different term in a later period. Some of the terms encountered in these early texts are qing (to brand, tattoo), mo (to ink), ci qing (to pierce [and make] green), wen shen (to pattern the body), diao qing (to carve and [make] green), ju yan (to injure the countenance), wen mian [CHINESE CHARACTERS NOT REP RODUCIBLE IN ASCII] (to pattern the face), li mian (to cut the face), hua mian (to mark the face), lu shen (to engrave the body), Iu ti (same), xiu mian (to embroider [or ornament] the face), ke nie (to cut [and] blacken), nie zi (to blacken characters), and ci zi (to pierce characters). These terms are sometimes used together, and there are numerous further variations. In general, if the tattooing of characters appears in the term, it refers to punishment, but this is certainly not true in every case. Likewise, if a term literally meaning “to ornament” or “decorate” is used, it does not necess arily mean that the tattoo was done voluntarily or for decorative purposes.
 
All of the types of tattoo are usually described as opprobrious; people bearing them are stigmatized as impure, deviant, and uncivilized. There does not ever seem to have been a wide-spread acceptance of tattoo of any type by the “mainstream” society; this was inevitable, partly due to the early and long-lasting association of body marking with peoples perceived as barbaric, or with punishment and the inevitably subsequent ostracism from the society of law-abiding people. Another reason, of course, is the belief that the body of a filial person is meant to be maintained as it was given to him by his parents.
 
The exception to this negative textual assessment lies in the collection of informal narratives of Duan Chengshi, a collector of curious information who usually simply observes and records, who occasionally allows himself openly to reveal his sense of wonder. Tattoo does not give rise to revulsion in this unusual man; like much of what he observed and recorded he finds it fascinating and marvelous; an aberration, perhaps, but a lovely one, often skillfully done and worthy of attention, and even of admiration.
 
TATTOO AS A DESCRIPTIVE FEATURE OF NON-HAN “BARBARIAN” TRIBES
 
The first kind of reference to tattoo to be discussed is probably the most widely known among sinologists. We know from historical records, poetry and other sources that many peoples in the areas surrounding the “central kingdoms” tattooed their bodies. Most of the records refer to Man or Yi barbarians, broad terms that refer to various tribes located mostly in the regions south of the Yangzi river, such as present-day Guangzhou, Zhejiang, and northern Vietnam. One commonly mentioned group is the Yue ; this is again usually understood as a general term for the non-Chinese peoples south of the Yangzi, extending all the way to Guangdong and Vietnam to the south, and to Zhejiang, and Jiangxi to the north. [5] In some cases the comments made by Chinese literati about these people indicate a fairly disinterested curiosity, and sometimes they are straightforward records of the important details that separated these peoples from the majority (viz., civilized) people. Sometimes the tattoo is information peripheral to an anecdote or lesson of some kind. In the first section of Zhuangzi, a text of the third or fourth century B.C., for example, we read of the futility of a man of Song attempting to sell ceremonial caps to the short-haired, tattooed men of Yue. [6] The Hanshi waizhuan contains an amusing anecdote about an emissary sent by the King of Yue to Jing . [7] A certain official of Jing asked to be allowed to receive the Yue emissary first, since the Yue were a barbaric people. The Jing official instructed the Yue envoy that he would have to wear a hat if he wanted to have a proper audience with the king of a civilized land. The Yue envoy countered that the Yue people had originally been compelled to settle in a riverine environment, and presently associated not with great and civilized people, but with various water creatures. He co ntinued that the Yue people only settled there after tattooing their bodies and cutting off their hair (presumably as apotropaic aids to living in this dangerous environment). “Now I have come to your esteemed country and you insist on saying that I will gain audience only if I wear a hat. Since it is like this, how would it be if, when your noble country send an emissary to Yue, he for his part will have to cut off his nose, be branded, tattoo his body, and cut off his hair before being granted audience?” The King of Jing came out and, in full court regalia, granted audience to this intelligent and witty Yue envoy. [8] The Tang commentator Kong Yingda (574-648) notes that the Yue people have a custom of cutting their hair and tattooing their bodies as an apotropaic device, to ward off jiao dragons. [9] To do this they cut their flesh and darken it by rubbing red and green pigment into it. [10] There is mention of th is practice in some of the works contained in the great sixth-century literary anthology, Wen xuan , as well. Zuo Si (ca. 250-ca. 305 A.D.), for example, writes admiringly of tattooed peoples in his “Wu du fu” (Wu Capital Rhapsody) thus:
 
Warriors with tattooed foreheads
 
Soldiers with stippled bodies
 
Are as gorgeously adorned as the curly dragon
 
And are a match for the kog and the tya. [11] In Yang Xiong’s (53 B.C.-18 A.D.) “Yulie fu” (Plume Hunt Rhapsody) the emperor orders swimmers from the tattooed peoples to catch water creatures for him. [12] It is not clear how the tattoo protected these swimmers; perhaps it functioned as a simple charm, but also possible is that the tattoo rendered the swimmer indistinguishable (and thus safe) from certain dangerous water creatures, as the function of a kind of sympathetic magic. The Wei zhi , compiled before 297, states that all of the men among the people of Wo (presentday Japan) tattoo their faces and bodies. According to the text, this was originally done for the purpose of warding off harm in the water, but now is also decorative. [13] More than seven thousand li to the northeast of the nation of Wo lies Wenshen guo (the Land of Tattooed Peoples), according to the Nan shi The bodies of the inhabitants are tattooed like animal skins. [14] In the Sui shu we read that the women of Liujiu guo similarly tattoo their hands with ink, in designs of insects and snakes, while the men remove all of their body hair. [15] The Xin Tang shu lists a number of peoples who practice tattoo–among them are three tribes of the southern Man barbarians: the Xiujiao (“embroidered feet”), who tattoo patterns from the ankle to the calf, the Xiumian (“embroidered face”), who tattoo their faces black, and the Diaoti (“carved forehead”), [16] wh o tattoo both face and body. Elsewhere in the same text we read of the Kirghiz, whose men tattoo the hands as a mark of valor, and whose women tattoo the nape of the neck as a sign of marital status. [17] Wang Bao (1st c. B.C.) writes that there are countries whose people braid their hair, scar their faces, blacken their teeth, and whose eyes are set deep, like the eyes of houlets. There are those that cut their hair, tattoo their heads, and go about with naked, tattooed bodies; all of these peoples “hasten to make tribute offerings to the Chinese empire, and take joy in returning allegiance to China.” [18] The specific customs described by the Chinese in these texts vary, but in most cases the purpose of recording the passages seems to be, as in this one, to highlight the separateness of the peoples who practice tattoo. This impression of otherness is heightened by the mention, besides tattoo, of activities such as eating with the hands, going about naked, wearing rings in the nose, and so on; from the point of view of a civilized Chinese, these are habits hardly distinguishable from those of animals. Tattoo is in fact the epitome of uncivilized practice, since it patterns the human body like the skin of an animal or water creature.
 
Among Duan Chengshi’s entries on tattoo, there are only four that focus on tattoo as a practice of non-Han peoples, but, like the other types that he takes up, their inclusion is crucial to his overall contribution, as I shall discuss later. In these pieces Duan Chengshi does not offer much new information; most of his sources are former records. In entry 290 he does mention his personal interest in the contemporary practice of tattoo by residents of the south, and his remarks indicate that the slaves to whom he talks might have come from among non-Han peoples who practice tattoo. Except in entry 303 Duan refrains, however, from making any comments that reveal his own opinion; in each of these four pieces he simply records a few brief lines of rather dry information, the likes of which will sound familiar to readers of the passages I have mentioned above. At the end of entry 303 Duan does mention his belief, revealed elsewhere in Youyang zazu as well, that ignorance about tattoo, as about anything, is a most shameful thing. Though he intimates that he is an educator, he then provides a disclaimer, saying that he is just recording these notes as amusement. In the original order, this entry is the final entry of the tattoo section.

Entry 290
 
The craftsmanship of men of Shu [19] is such that their tattoos are as clear as paintings. Some say that if one uses eyeblack, the color will be freshest; but I asked the slaves and they said you simply have to use good ink.

Entry 295
 
The Yue people are accustomed to being in the water. They always tattoo their bodies to avoid trouble from jiao dragons. Now, in the south the practice of tattooing the faces of men and boys is probably a practice inherited from the Diaoti tribe. [20]

Entry 299
 
Also, according to the Han shu, [21] Wang Wu and others were sent as envoys to pay a visit to the Xiongnu. According to the customs of the Xiongnu, if the Han envoys did not remove their tallies of authority, and if they did not allow their faces to be tattooed, they could not gain entrance into the yurts. Wang Wu and his company removed their tallies, submitted to tattoo, and thus gained entry. The Shanyu looked upon them very highly.

Entry 303
 
The Tianbao shilu [22] says that the Jiu [CHINESE CHARACTERS NOT REPODUCIBLE IN ASCII] mountains in Rinan [CHINESE CHARACTERS NOT REPODUCIBLE IN ASCII] country [23] are a connected range of who knows how many li. The Luo (lit., naked) people live there. They are descendants of the Bo people. [24] They tattoo their chests with a design of flowers. There is something like purple-colored powder that they paint below their eyes. They remove their front two teeth and think of it all as beautiful decoration. I am of the opinion that if a gentleman does not understand something he should he ashamed. Tao Zhenbai [25] always said it was deeply shameful not to know even one thing. How much more so when punishments of the “inking” sort, such as the lime that it was established by physiognomy that Qing Bu [26] would become king, or that on the licentious a red flower will always be marked, [27] are plain to see in classical documents. I have in my idle hours recorded what I remember, to send to friends of like mind. It will amuse them and serve to unfurrow their brows.
 
TATTOO AS PUNISHMENT FOR CRIMES
 
For most of recorded history tattoo was considered a highly effective means of punishment in China. Although we do not have verifiable information about the earliest times, we can infer from texts written in the Zhou (ca. 1100-256 B.C.) and the Han (206 B.C.- 220 A.D.) that the tattooing or branding of criminals was probably as widely used in ancient times as it was in dynasties possessing relatively reliable historical records. [28]

The effectiveness of tattoo and of other physically defiling punishments derived from the shame that a criminal felt upon re-entering society, having had a part of his or her body mutilated or even removed, and thus being permanently marked as a criminal. From early times until recently, there has been a strong stigma attached to failing to preserve whole one’s physical body; he is seen to have failed in one of the most important filial duties, and has brought shame on his family, past, present, and future. In the beginning of the Xiao jing Confucius tells his disciple Zengzi that filial piety is the thing most necessary for civilized society, and that the basis of filial piety lies in avoiding injury to the skin, hair, and body that is received from one’s parents. [29] This kind of weighty injunction rendered particularly fearful punishments such as the marking of the skin by tattoo or branding. [30]

There are several passages in the Shang shu that mention tattoo as one of the ancient physical punishments for crime. [31] In the section known as the “Tang shi” (The Oath of Tang), [32] Yi Yin states to Tang , the founder of the Shang dynasty, that there are nobles, high officials, and even princes who engage in activities such as drunken dancing and singing; they suffer from addiction to wealth, women, and hunting; they do not heed the words of the sagely ancients and are not filial. Ministers who do not remonstrate with this type of ruler, trying to change his behavior, should all be punished by branding or tattoo. [33] The mention of the possibility of fining or of symbolic punishments to take the place of tattooing and the other corporal punishments makes it clear that there was indeed a penal practice in ancient China of cutting off or into various parts of the body. [34] The Shang shu gives details about what kinds of fines to use if in doubt about a crime. Since crimes deserving of tattoo are the “lowest,” the fine substituting for it is the cheapest: six-hundred ounces (lit., one hundred huan ) of copper. [35] If the person deciding a case is not certain whether the criminal’s behavior warrants his feet or testicles being sliced off, he should fine the person three thousand ounces instead. The crimes that are usually punished by tattoo but that may, in doubtful circumstances, be substituted by the payment of money number one thousand, compared with five hundred crimes usually punishable by cutting off the feet, and two hundred crimes usually deserving of the death penalty. [36] This passage demonstrates the large numbers of crimes that were ordinarily punishable by tattoo, and also indicates a potential for leniency if a criminal were both wealthy and able to establish doubt as to his guilt.
 
In Shangshu dazhuan we read of another practice, that of substituting a cloth head-covering for tattoo and the other physical punishments. The text says that the “symbolic punishment under Yao and Shun” involved having criminals who committed various types of crimes wear an ochre-dyed cloth with no borders, hemp sandals, or a black cloth. The criminals should then be made to go live in their hometowns and suffer the shame of being looked down upon by the people. [37] There does not seem to be any way to prove that tattoo and other corporal punishments were widely used in remotest antiquity. The extant texts themselves are often difficult to date, and the customs that they describe are often difficult if not impossible to ascribe to any one particular people or time. Even if they were utilized widely, the desire to create an impression of a “Golden Age” makes it likely that writers in the late Zhou and Han would attempt to minimize the importance attached to the use of mutilating punishments and to emphasize the regular use of symbolic punishments in their stead. Suffice it to say that in the “Treatises on Punishment” {) and in other places in the dynastic histories from the Han dynasty onward there is confident mention of tattoo in “ancient times.” For example, the Han shu “Treatise on Punishment” says that there were five hundred crimes punishable by tattoo in the Zhou period. The text then states that tattooed criminals wer e sent to guard the city gates, those who had lost their noses were sent to guard the passes, and so on; the severity of the punishment was apparently in direct proportion to the distance from the center of “civilized life.” [38] Although theoretically tattoo was abolished along with the other mutilating punishments by Emperor Wen (reg. 179-155 B.c.) in 167 B.C., tattoo was apparently continued as a punishment during the Han [39] and the period of disunion following the Han. There is no mention of tattoo in the Tang penal code, though examples of the actual continuation of the practice are to be found in the histories. [40] It was reinstated as a legal form of punishment later, and there are many references to it in the Song, Yuan, and Qing dynasties. Tattoo was often combined with exile, ensuring that the defiled persons be removed as far as possible from law-abiding, civilized people. For example, the “Punishment treatise” of the Song shi [CHINESE CHARACTERS NO T REPRODUCIBLE IN ASCII] states that there are two hundred crimes punishable by tattoo and banishment. Among these, in the case of relatively minor offenses, it was possible to modify the punishment to a lighter sentence involving only penal servitude or banishment, but without tattoo. However, if the criminal were to commit another crime, he was immediately tattooed and enlisted in the military. [41] A specific description of one type of punishment is given in the same text. We read that a ring should be tattooed (ci huan) behind the ear in all cases where a person is convicted of robbery or banditry. If it is a case where penal servitude or banishment is also in order, the tattoo should be square. If it is a case where flogging is also in order, the tattoo should be round. After three cases wherein a criminal has been punished by flogging, the tattoo should then be done on the face. In diameter each tattoo should not exceed five-tenths of an inch. [42] One of the Yuan dynasty (1279-1368) legal codes, the Yuan dianzhang , is a rich source for descriptions of specific tattooing punishments. In the section on illicit sexual relationships we read that, in general, on the first offense, the adulterous couple will be separated, but if they are “caught in the act” a second time, the man will be tattooed on the face with the words “committed licentious acts two times” () and banished. [43] Numerous examples are given to illustrate this type of punishment.
 
The Youyang zazu has, again, only four brief entries that pertain to tattoo as punishment. In these pieces Duan is mainly concerned with terminology and with re-recording interesting tidbits he had read in earlier works. In entries 296 and 301 he describes actual tattoos; the other two entries are concerned with substitute punishments. It is significant that there is no mention of current practice or of his personal familiarity with this type of tattoo.

Entry 296
 
There were five hundred [44] crimes punishable by tattoo as described in the Zhouguan (i.e., Zhouli). According to Zheng Xuan (127-200), first the face was cut, and then ink was used to stop up the wound. The person with tattoos made thus by putting ink in wounds was made to guard the gates. According to the (Shangshu apocryphon) Shangshu xing te fang , [45] the so-called “zhuolu” was a punishment wherein the person’s forehead was drilled into. The punishment called “qing” involved the use of a horse-branding iron to engrave people’s faces. Zheng Xuan said, “Those who suffered the zhuolu and qing were referred to by people of their day as ‘people of knife and ink.'” [46]

Entry 297
 
The Shangshu dazhuan [47] says that the “Yu Shun symbolic punishment” was to make people who had done a crime punishable by tattooing wear a black cloth instead. In the Baihu tong it says, “‘mo’ is tattooing on the forehead. It is an example of fire defeating metal.” [48]

Entry 298
 
The Han shu says that instead of the physical punishment, the person deserving of tattoo is shaved bald and shackled, and (if a man), made to do wall-building labor (chengdan ) for four years, or (if a woman), to do grain-pounding punishment (chong ). [49]

Entry 301
 
The Liang Dynasty Miscellaneous Regulations [50] says that for all people who are imprisoned but whose cases have not yet been decided, the character (jie, “robber, thief”) must be tattooed onto their faces.
 
TATTOO OF SLAVES AND CONCUBINES, AND TATTOO AS COSMETIC
 
In most cases in the early texts the passages that describe punishments seem to apply to commoners and slaves alike. There are a few special types of tattoo that naturally only pertain to slaves, such as the forehead brand identifying a person as someone who had attempted escape, or the facial brand of ownership. In addition there are some records that describe the tattooing of slaves or concubines because of jealousy. One particularly instructive case shows to what extent a jealous wife will go to ensure that her husband does not notice other women. In the Wei zhi Pei Songzhi’s (fl. 424) note to a passage in the biography of Yuan Shao (fl. 168-80) tells us that after Shao died, his wife had all five of his concubines killed. Since she believed that the dead have consciousness, she then had their hair cut off and their faces branded, to destroy their appearance in the a fterlife, and to cause Shao not to wish to see them. [51] We see more of the tattooing of slaves or servants in four entries of the Youyang zazu. Entry 288 is reminiscent of the passage just described; again, the jealousy and pettiness of a primary wife is the focus, but Duan dwells on the gory details of the tattooing to create a vivid image of the procedure. It is one of the rare passages in early Chinese literature that mentions using different colors to produce a tattoo of shades other than the usual dark blue-green or black. Entry 293 attempts to explain the provenance of certain contemporary facial adornment fashions. Entry 300, a brief informational piece, describes the exact placement, size, and shape of tattoos to do in the case of escaped slaves, but it does not specify to what period of time it refers. In the eerie little anecdote in entry 286, Duan proves that the marks of tattoo penetrate to the very bone. He probably means this to be the primary lesson of his anecdote, since he placed the piece under the heading of tattoo, but in it he also subtly inveighs against treating the remains of the dead with disrespect, and indicates the good that can come from honoring the dead, whatever their status might have been in life. In this short piece Duan illustrates the mutual reliance of the dead and the living. giving central importance to the tattoo; originally a mark of shame that ended up benefiting both the dead man (by allowing him to be buried properly) and the living (by making him rich).
 
In the two entries on tattoo as a kind of cosmetic technique Duan again aims to explain current customs, but here there is no connection with punishment or slavery–the tattoo in entry 292 is originally caused by a seemingly innocent drunken accident. The second piece constitutes a simple explanation of a contemporary custom. It is clear that in some cases people were willing to overlook the negative connotations that tattoo carried; this second piece shows that there are people who actually marked themselves to look as if they were tattooed; although the exact reason for doing this is not clear, it appears that it might be some sort of attempt to benefit one’s descendants. The usual stigma of a tattoo mark on the face is not mentioned in either of these cases.

Entry 286
 
My cousin [52] Jang, during the Zhenyuan period (785-805) once stopped at Huang keng . [53] There was one among his entourage who was collecting bits and pieces of skull bones to use as medicine. On one of the pieces appeared the three characters (“escaped slave”). The marks were like light ink traces. It was then that they realized that tattoo penetrates all the way to the bone. In the night that man in my cousin’s group had a dream of a person whose face was hidden and who wanted the bones that had been collected. He said: “My shame is great. If you, honored sir, would bury them deep in the ground, I will bring you good fortune.” That man awoke in alarm; his hair was standing on end. He went immediately to rebury the bones, for the sake of the ghost. Later, whenever something was about to happen, the spirit would appear to him as if in a dream and tell him what to do. With this help, he amassed great wealth. At his death he had almost one hundred thousand (cash).

Entry 288
 
Fang Rufu’s [54] (second) wife was of the Cui clan. She was jealous by nature. [55] The slave girls around her were not allowed to wear thick makeup or high coiffures. Each month she gave each girl one dou of rouge and one coin’s worth of powder. There was one slave who had just recently been purchased. Her makeup was slightly finer (than the others’). Mrs. Cui angrily said to her: “So, you like makeup, eh? I will make you up!” Then she had someone slice the girl’s eyebrows off, and she used blue-green ink to fill (the wounds) in. Then she heated an iron bar and burned the skin (starting) at the corners of each eye. The skin scorched and rolled up wherever she touched. Then she tinted the wounds with vermilion. When the scabs came off, the scars left there were just like makeup.

Entry 293
 
The “flower seed marks” that women use to decorate their faces nowadays originated with the fashion of Shangguan Wan’er (664-7l0). [56] Prior to the Dali period (766-80), among the wives of the official class, many of those who were jealous and cruel would tattoo the faces of the slave girls and concubines who failed, even in small ways, to please them. This is how there came to be the so-called “moon spot” and the “money spot” (tattoo).

Entry 300
 
The Jin ling (The Jin Orders) [57] says, “When a male or female slave has escaped for the first time, do a tattoo with copperas [58] like ink. Tattoo the two eyes. Later if he or she escapes again, tattoo on the two cheeks. For a third escape, tattoo a horizontal line below the eye. All of them should be one and a half inches long. [59]

Entry 292
 
In makeup fashions of today, high value is placed on the facial “mole.” For example, there is the mole of a crescent-moon shape, which is called a “yellow star mole.” The fame of the so-called “mole inlay” derives no doubt from Lady Deng, wife of Sun He of the state of Wu. [60] Sun He favored her. Sun He was once dancing drunkenly and with abandon, when he accidentally cut Lady Deng’s cheek, drawing blood. Deng was delicate and weak, and became more and more miserable, so Sun He called the palace physician to mix some medicine. The physician said that he should be able to get rid of the mark if he could procure some bone marrow of white otter and mix it with powders of jade and amber. Sun He had to spend one hundred gold pieces to buy the white otter before they were able to mix the ointment. They added too much amber, however, so the ointment was inferior and the scar didn’t disappear. On Lady Deng’s left cheek there was now a red spot that resembled a mole. When people saw it they found her even more imbued with fascinating charm. Those of Sun He’s consorts who wished to gain his favor all marked dots on their cheeks with cinnabar. Only then would they gain his attention. [61]

Entry 294
 
Among commoners there are sometimes people who apply to the face a bluish mole that resembles a tattoo. There is an old saying that in case a woman died in childbirth, her face must be marked with ink; otherwise, it would be unlucky for later generations.
 
TATTOO IN THE MILITARY AND VOLUNTARY FIGURATIVE OR TEXTUAL TATTOO
 
A short anecdote by Kong Pingzhong (fl. 1065) draws our attention to several issues that are of interest to this study. It concerns two men, who are working together in the Bureau of Military Affairs in the Palace Secretariat. Apparently Wang Boyong “regularly teased his colleague Di Qing about his tattoos. He would say, ‘They are finer and brighter than ever.’ Di replied, ‘Can it be that you don’t like them? I was hoping respectfully to present you with a line (or column) of them.’ Wang was deeply ashamed.” [62] The meaning of the exchange is not absolutely clear but a few things can be learned from it. First, there was at least one official working in the military branch of the Palace Secretariat sporting decorative tattoos; these seem to have included lines of poetry, which suggests an appreciation of literature. The behavior of the tattooed man is such that the man making fun of him is ashamed of himself. Second, the very fact that his colleague “regularly made fun” of his tattoos is of interest. Of course we may guess that Wang personally found Di’s body markings unusual, but more likely this little exchange suggests that although this military official had tattoos, the practice was not common, and probably was not entirely acceptable, in polite society. It is very likely that a large percentage of tattoos, voluntary or not, after at least the Han dynasty were in some way connected with the military. Tattoo was used to brand men as part of a particular regiment, as a means of identification (dead or alive), to prevent recruits from escaping, and to mark prisoners of war. [63] Valiant individuals also tattooed themselves with oaths, proclaiming their wholehearted dedication to a particular nation, or to a certain military or personal cause.
 
Most of the readily available information on military tattoo comes to us from rather late Song and Ming texts, and most of them agree that the practice of military tattooing was either started or reinstated in the Later Liang Dynasty (907-22). For example, Su Xun (1009-66) tells us in his Bing zhi (Military Regulations) that during the Five Dynasties (907-60) period, Liu Shouguang (fl. 911) [64] reinstituted the rules of tattooing the face and hands. Thereafter “the entire realm took it as a common practice.” [65] In describing the general societal breakdown and rise of banditry in his own time Sima Guang (1019-86) tells us that there was a practice of seizing and tattooing of ordinary citizens, making them slaves of the armies. In his Lei shuo [CHINESE CHARACTERS NOT REPRODUCI BLE IN ASCII] he elaborates at length on this practice, particularly as it occurred in Shanxi. [66] A passage in the Song shi details how the highways were filled with panic-stricken, terrified common people, who frightened each other with stories of the armies capturing people and tattooing them, in order to make up their quota. [67] Zeng Cao (fl. 1136-1147) names the person responsible for allowing this to occur. He says that the general custom of tattooing soldiers’ faces was begun by the First Emperor of (Later) Liang (Liang Taizu , reg. 907-14). This is reiterated in a passage found in Sima Guang’s Zizhi tongjian , where we read that in the first year of the First Emperor of Later Liang (907) the emperor had all of his soldiers tattooed with their military post and rank, in order to prevent escape and absenteeism. Sima continues that some of the soldiers were homesick for their villages and attempted to escape anyway. Since the villagers did not dare to give refuge to the soldiers, the escapees were either killed or were forced to gather in the mountains or marshes and become bandits. When this eventually became a major social problem, a general amnesty was granted through imperial proclamation, a nd the tattooed men returned to their home villages. In this way bandits were reduced by seventy or eighty percent. [68] Tattoo was used by soldiers in some armies as a way to demonstrate devotion to a cause. Usually a brief oath of several words would be tattooed on the arms, back, or chest; very likely the purpose was to instill a sense of strength and valor and to prove this valor both to others in one’s own regiment and to enemies. We read that the armies of Shu tattooed themselves with the shapes of axes to give themselves renewed courage when they learned that they were going to be attacked, [69] and that others tattooed characters on their chests, proclaiming dedication to the nation. [70] Undoubtedly the best-known example of a military man bearing a tattooed oath is the famous Song general Yue Fei (1103-41), tragic and heroic subject of many plays and stories that center on his attempts to recapture northern China from the Jurchen barbarians. Shen Defu even claims that the practice of tattooing oaths in the military originate d with Yue Fei, [71] though as we have seen this was a practice before Yue Fei’s time. Shen cites Yue Fei’s tattooed oath as a sign of the ultimate in loyalty. [72] Yue Fei’s official biography says that he had a tattoo on his back that read, “Jinzhong baoguo” (serve the nation with absolute loyalty.) [73] This bit of information was incorporated into many literary works, one of the most interesting of which is the chuanqi drama “Rushi guan” . It has a vivid description of Yue Fei’s mother crying as she pierces her son’s skin using an embroidery needle and rubs the ink into the fresh wounds. [74] A military-oath tattoo such as Yue Fei’s carries no negative connotation; on the contrary, the man bearing this type of tattoo is, at least in the popular imagination, considered positively heroic.
 
A late nineteenth century text records details for procedures that are followed during a coroner’s autopsy. In the examination of a dead body, two of the identifying marks to be looked for are tattooed characters, ci zi , and decorative tattoos, diao qing . In addition, any signs of tattoo removal by moxibustion were to be recorded. [75] The two types of tattoo are noted separately; the tattoo as a mark of punishment and that used as decoration are not considered to be the same.
 
Here we are concerned with the second type of mark looked for by the coroner in the above passage, that is, the figurative tattoo, which unlike the brand, was often done voluntarily. In a vernacular narrative work that traces the history of the Five Dynasties, Wudai shi pinghua , the portion of the text treating the life of Liu Zhiyuan , (Gaozu, reg. 947-48), founder of the short-lived Later Han dynasty (947-50), is of particular interest as an example of this kind of tattoo. The pinghua account is historical fiction rather than official history; it portrays the subject of Liu’s early life and career as it appeared in popular imagination starting at least in the Yuan dynasty. According to the pinghua story, in his youth, “Liu Zhiyuan went out, and hired a tattoo artist (lit., “needle-brush artisan” ) to tattoo his body. On his left arm he had the man tattoo an immortal fai ry maiden, and on his right arm he had tattooed a treasure-snatching green dragon. On his back was tattooed a “yaksa who laughs at Heaven.” This, along with his drinking and gambling, infuriated his family and Liu was kicked out of the house. Eventually Liu is humbled by a losing streak at gambling, and he sets out to reform himself His worth is recognized by Li Jingru a man skilled in physiognomy, who wants to help Liu to stay out of the army. Mr. Li, however, can only give Liu a job “in the back” feeding the horses, because of the unsightliness of his tattoos. Supernatural occurrences eventually convince Li of Liu’s special qualities, so in spite of the latter’s tattoos, he marries his daughter to Liu. This sets Liu Zhiyuan on the road to social rehabilitation and to his eventual seat on the dragon throne. [76] Liu Zhiyuan’s official biography makes no mention of any of this, and in fact, the first thing it points out when discussing Liu’s character is that “when the emperor was young he was not fond of amusements, and was serious and taciturn.” [77] Another literary treatment of tattooed heroes is that found in the sixteenth-century vernacular novel Shuihu zhuan . There are five tattooed men in the band of outlaws that gathers under the leadership of Song Jiang at Liangshan Marsh; they are Yan Qing , Lu Zhishen Shi Jin , Zhang Shun and Song Jiang himself. Song Jiang’s tattoo is a facial brand; those of the other four, however, are figurative tattoos. Shi Jin, for example, is known by all as the “Nine-patterned dragon” His father, eager to help young Shi Jin in his goal of becoming a great martial arts fighter, not only engages weapons experts, but also hires a tattooist to work on his son. Jin is tattooed on his shoulders, arms, chest, and belly with a pattern of nine dragons. [7 8] Later in the novel, another of the “decorated” heroes, Yan Qing, is obliged to cover his tattooed body with a cassock robe, so that he will not be recognized. [79] In another passage a woman named Li Shishi , whose support Yan is attempting to garner, indicates a desire to see his famous tattoos. “Li Shishi laughed and said, ‘I’ve heard that Elder Brother’s body is covered with beautiful tattoos; how would it be if I asked for a look at them?’ Yan Qing smiled and replied: ‘Although this humble man of lowly form does have some ornamental tattoos, in the presence of a lady how could I dare to remove my clothes and reveal my body?”‘ Needless to say, Lady Li’s will prevails: “Yan Qing had no choice but to strip naked. When Li Shishi saw his tattoos, she was greatly pleased. She caressed his body with her slender jade hands.” [80] The social inappropriateness and, in this case at least, the sexual allure of decorative tattoos is made abundantly clear. [81] Far and away the most comprehensive extant source for material on decorative tattoo in early China is the Youyang zazu. The eleven entries that describe figurative and textual tattoo are very informative for the scholar wishing to understand Chinese culture more deeply, particularly that of the Tang period. Duan Chengshi’s text reveals a world in which many kinds of people, of various social ranks, are tattooed with pictures or with literary texts, or both. Many of the descriptions are of people who lived during Duan’s own time, and some are of people with whom he was personally acquainted and whose tattoos he examined himself.
 
Although tattooed members of the official class are represented, many of the subjects of Duan’s entries are rather unsavory types, and are described as riff-raff and bandits. Duan describes the official reaction to these people as extremely negative. Their tattoos rendered them even more abhorrent to the authorities than their nefarious activities alone would have. Duan also tells of tattooed military men or of those who had been tattooed during their enlistment when young. Clearly soldiers were not only tattooed as a measure against escape and as a brand of ownership; they were often decoratively tattooed of their own volition as well. It is important to note the connection between the tattoos used in the military for identification and punishment and those used for decoration. Probably tattoo was, of all Chinese social groups, most acceptable among members of the armies; perhaps in some cases decorative tattoo was employed as a way to cover or hide other types of tattoo. The problems associated with bearin g a tattoo in ordinary society were numerous, and tattoo could well lead to ostracism; this was, indeed, one of the primary reasons that it was an effective punishment. People thus shut out from proper society might naturally seek to associate with others like themselves, to create a new kind of fraternity or “in-group.” Bands of tattooed military men, outlaws, and street ruffians, then, can be seen to have partly arisen out of the prevailing attitudes and fears about tattoo.
 
Duan’s entries paint a picture of the streets of Jingzhou, Chang’an [82] and other cities that is not seen in such detail elsewhere. Duan pricks the reader’s imagination with these entries; particularly when he mentions cases like the man in entry 284, who holds a respectable position, but under whose concealing robes lies a full-body tattoo of an undulating snake. The reader cannot help but wonder if there were others like him, or if he was an anomaly. In his description of figurative tattoos Duan tells us that tattoo was sometimes known to endow the wearer with supernatural strength. The tattoo might be of a god who was believed to bestow his power on the person who bore his image; in other cases, the tattoo might be considered an effective apotropaic device.
 
Perhaps one of the most interesting types of tattoo is described in entry 282. There, the entire body of a street policeman is tattooed with thirty-plus poems of Bai Juyi (772-846). This is not the only example of the written language used as tattoo, but it is certainly the most unusual one, since no other example describes literary texts permanently inscribed on the body.
 
In a few entries Duan describes the fine quality of the tattoos that he saw. We do not know the exact technique by which some of the large and complex figurative tattoos were created, but in entry 291 Duan describes a simple stamping technique by which a small tattoo could be had instantly. This entry is truly astounding in its implications. The existence of a pattern book from which a client could order standard or specialized tattoos, and the capability of producing instant, high-quality tattoos by means of a needle-studded stamp, indicates a large demand for tattoos in some regions. We may speculate that the clients served by these tattoo artists were primarily local bullies, travelers, soldiers, and so on, but there is a possibility that among the general population there was also some interest in this kind of fast, relatively painless body marking.

Entry 279
 
In the shopping streets of the capital (Chang’an) most of the young toughs are shaved bald and have their skin tattooed with the shapes of all kinds of things. They presume on their position in the various armies to beat others and steal by force. There are those who gather like snakes in wineshops [83] or beat people with the clavicles of sheep. The present Metropolitan Administrator, Lord Xue Yuanshang (fl. 827-46), after three days in office, [84] ordered the ward chiefs secretly to apprehend these (ruffians); approximately thirty men were beaten to death, and their corpses were exposed in the marketplace. All of the city residents who had tattoos destroyed their tattoos with moxibustion. At the time a strongman of Daning ward, Zhang Han by name, had tattooed his left arm with the words, “Alive, I do not fear the metropolitan administrator” and on his right arm he tattooed, “Dead, I do not hold in awe King Yama.” Also there was a man called Wang Linu, who had hired a tattoo artist for five thousand cash. On his chest and belly appeared mountains, pavilions, parks, ponds, and kiosks, grass and trees, and birds and animals. There was nothing that wasn’t included. The tattoo was so fine that it was as if it had been painted on with repeated fine washes of color. Lord Xue Yuanshang had both of these men beaten to death.
 
There was also the bandit Zhao Wujian who was marked with one hundred and sixty overlapping impressions of wheeling magpies and other birds. On his left and right arms he had tattooed the poem:
 
Wild ducks resting overnight on a sandbank,
 
Attacked by falcons morning after morning.
 
Suddenly in alarm they fly into the water,
 
Their lives spared until this morning.
 
Again, in Gaoling country [85] a man named Song Yuansu, whose body was tattooed, was arrested. He was tattooed in seventy-one places. His left arm said:
 
In days gone by, before my house was poor,
 
I wouldn’t begrudge a thousand gold pieces [86] to form a close friendship;
 
Now I’ve lost my way, and I seek those close friends,
 
Yet roaming over every pass and mountain, not a single one appears.
 
On his right arm was tattooed a gourd; from out of its top emerged a person’s head. It looked like a puppet in a string puppet show. A local official didn’t understand, and asked him what it signified. He explained that it was the spirit of the gourd. [87]

Entry 280
 
Li Yijian (756-822) [88] was in Shu at the end of the Yuanhe period (806-21). A Shu city (Chengdu) resident named Zhao Gao was always getting into fights and was often in prison. His entire back was tattooed with the Heavenly King Vaisravana. Whenever the constables were about to have him flogged they would stop short when they saw the tattoo. Relying on this, he gradually came to be a major problem for the ward market. His assistants reported this to Li Yijian, and Li became furious. He seized the tattooed man and took him in front of the court. He got a newly-made stiff club, three inches wide at the head, and violently ordered the caner to beat the Vaisravana tattoo, and stop only when it was completely gone. He applied more than thirty strokes, but the man still did not die. [89] After ten days, Zhao Gao went from door to door, with his upper garment removed, howling and begging for meritorious offerings to repai r the tattoo. [90]

Entry 281
 
The Lesser Commander [91] of Shu, Wei Shaoqing was Wei Biaowei’s (fi. 821-36) [92] paternal (older) cousin. When young, he wasn’t fond of studying; rather, he had a fetish for tattooing. His uncle once had him remove his clothes so that he could have a look at the tattoos. On his chest was tattooed a tree, on whose branches were perched several dozen birds. Below the tree hung a mirror; its central knob was fastened with a rope, which was being pulled by a person standing off to the side. His uncle didn’t understand and asked what it meant. Shaoqing laughed and answered “Hasn’t uncle read the poem of Zhang, Duke of Yan? [93] (One line of it) goes: ‘Pull the mirror, and in winter crows will come to gather.’ [94] That’s all it means.” [95]

Entry 282
 
Ge Qing a street patrolman of Jingzhou, was brave and valiant. From his neck on down he was completely tattooed with the poems of Secretary Bai Juyi. A Jingzhou resident, Chen Zhi, and I once summoned him so that we could have a look. We had him take off his clothes, and he could recite from memory even the poems on his back, and could put his hands behind his back to point to exactly where they were tattooed. When he came to the line, “Is it not that, of these flowers, I only love the crysanthemum,” [96] there was a picture of a person holding a cup of wine, standing near a cluster of chrysanthemums. Again (with the line), “By the carved-out hollows on the yellow dyeing blocks, even in the winter the trees have leaves,” [97] then he pointed to an image of a tree. On the three were hanging wood blocks for dyeing, and the carvings on the blocks were exceedingly fine. Altogether there were more than thirty poems tattooed on him, and on his body there was not a sing le bit of intact skin. Chen Zhi called him “A walking illustration of Bai Juyi’s poems.” [98]

Entry 283
 
Whenever my groom-servant Lu Shenting engages in tests of strength in the army (camps) he is able to chew dozens of pieces of gravel, can lift a stone step [99] and a basket [100] full of six-hundred catties of stone. The Heavenly Kings [101] are tattooed on his back. He says himself that he is imbued with the power of these spirits when he goes into the contest arena; with the help of the spirits his strength increases. On the first and fifteenth days of the month he always prepares milky gruel. He burns incense and sits with his tattoos exposed, and then he has his wife and children make offerings to the kings and worship them.

Entry 284
 
Cui Chengchong (n.d.) when young was an enlisted man who was skilled at donkey polo. When shooting or avoiding the ball he would wield his mallet so nimbly it was as if he were stuck to it with glue. Later he became the Surveillance Commissioner of Qiannan [102] When he was young he had had his entire body tattooed with the image of a snake. It started from his right hand, with the mouth gaping open between his thumb and forefinger. It circled his wrist and went once around his neck and then locked tightly around his stomach. It stretched out over his thigh, and the tail extended to his shin-bone. When facing guests and comrades, he would usually cover his hand with his robe, yet when he became intoxicated with alcohol he would strip down, posture with his arm and make a halberd of his band. He would grasp hold of the entertainers and would threaten: “The snake is going to bite you!” The entertainers would immediatel y scream and act as if they were hurt. In this way they would make a game of it.

Entry 285
 
During the Baoli period (825-27) a certain commoner had his arms tattooed. Several dozen people gathered to watch the process. Suddenly appeared a person wearing a white gown and a brimmed hat. He inclined his head, smiled a faint smile, and then left. Before the man had gone ten steps, the blood flowed from the commoner’s tattoos like that from a nosebleed, and he felt the pain penetrate to his bones. In just a short while he had lost more than a dou of blood. [103] The crowd of people suspected that it had something to do with the man who had looked at him before, and they told the tattooed man’s father to find him for help. [104] That person was not willing to take responsibility, and only after the father had made obeisance to him dozens of times did he finally scoop up a pinch of dirt and say something like an incantation. (Then he said), “You can put this on it.” When they did as he said, the bleeding stopped. [105]

Entry 287
 
In the military camp of the Shu general Yin Yan there was a soldier who arrived half an hour late for evening muster. Yan was about to reprimand him. The soldier was drunk, however, and explained himself in a loud voice. Yan became angry and had him beaten twenty times or so, to the point that he nearly died. The younger brother of the soldier was the camp jailer. He was friendly and kind by nature, but he considered Yan’s actions unfair, so he tattooed the words “Kill Yin” into his skin, and blackened them with ink. Yin Yan found out about it and had someone beat him to death on another pretext. Later, when the Southern barbarians invaded during the Taihe period (827-36), Yan employed tens of thousands of soldiers to protect the Qiongxia pass. [106] Now, Yin Yan was stronger than anyone else, and he would often joke around with those near him, striking their shins with a knotted jujube staff. As he struck them, their muscles would swell up, but there would be no outward trace left by the staff. Relying on their strength, the entire army left the pass and pursued the barbarians for several li. The barbarians then launched a surprise attack from both sides, and Yin Yan’s army suffered a crushing defeat. Yin’s horse was upended, and Yin was killed, having been pierced by several dozen spears.
 
Earlier, on the day the army rode out of the pass, the jailer that Yin Yan had previously executed suddenly reappeared, going along at the head of the army. The man was carrying a round yellow board as big as the hub of a wheel. Yin Yan had a bad feeling about it, but when he asked those around him, none of them could see the spectre. In the end he died on the battlefield. [107]

Entry 289
 
When Yang Yuqing (jinshi 810) was governor of the capital, [108] there was someone who frequented the marketplaces called “San Wangzi” who was so strong that he could lift up huge stones. His entire body was tattooed with pictures; there was not one piece of unmarked skin on his whole frame. He was sentenced with the death penalty many times, but he always took shelter with the army and thus managed to escape death. One day he slipped up, and Yang Yuqing commanded several of his personal followers [109] to capture and arrest him. They barred the gates and flogged him to death. The decision in this case reads: “He tattooed his four limbs, and he called himself ‘Son of the King’ (wangzi). What need is there to examine into it (judicially)? It is a matter of course that he is guilty.” [110]

Entry 291
 
In Jingzhou, during the Zhenyuan era (785-805) there were tattoo vendors in the street. They had imprinting stamps into which they would press needles closely together into the shapes of all kinds of things, such as toads and scorpions, mortars and pestles, or whatever people wanted. Once they’d imprinted the skin (with this needle stamp), they would brush (the pricked area) with black lead. After the wound had healed, the tattoo was finer than that on the pattern from which the customer had originally ordered.” [111]

Entry 302
 
In the Buddhist work Sanghika-vinaya [112] the so-called “black scar print” [113] is done when a bhiksu practices the rite of the Brahma King. They tear their flesh and, with the bile of peacocks and with copperas and other things, they paint on the cuts made in their bodies. They form written characters as well as the shapes of birds and beasts. They call it “print tattoo” .
 
CONCLUSION
 
Unfortunately, visual representations of tattoos from pre-modern China are not in abundance; [114] likewise, as prevalent as modem Chinese tattoo practices may be, they cannot be said to be a direct descendant of ancient Chinese practices. What we lack in pictures, we do have in texts, though. The sources examined in this paper describe a fairly broad range of uses, but naturally the glimpse they provide into the world of tattoo practice is limited, partly due to the generally negative connotation associated with permanent body marking by the class of literati. However, although these passages from zhiguai, novels, unofficial histories, etc., might not all be historically verifiable, they do at the very least reveal a valuable perspective on life in early and medieval China, as they indicate the existence of a many-sided culture in which people of various social classes practiced tattoo, for reasons sometimes, but not solely, connected with punishment or the military.
 
Tattoo in China in some ways seems quite limited, compared to the roles that it has taken in other cultures around the globe. It was not used in rites of passage into adulthood, as a mark of sexual maturity, marital status, or as a mark of identification in a special occupation. Tattoo as punishment, as facial cosmetic, as mark of bravery, as apotropaic device, and as personal body decoration are, on the other hand, among the uses that China’s tradition shares with some of these cultures. The tattoo practice that is not widely known to scholars is the figurative body decoration, and it is the type that lends itself most to conjecture. A person’s body decoration marked him as belonging to one of probably many subcultures–one of the most obvious being that of “street toughs,” made up of current or former military men, prisoners, or slaves. Another group of people used tattoo to draw divine protection or power. Why, though, did people mark themselves permanently, when they lived in a society in which such mark ing was highly stigmatized, and cause for ostracism? Does it indicate a changing attitude toward the physical (and social) body in the Tang, an attitude that continued into the Song and Ming (as suggested by the texts of those periods that describe tattoo)? Does it indicate a strong anti-establishmentarianism on the part of certain people, a willingness and even desire to identify with that which was perceived as barbaric, possibly exotic, and not a part of civilized Chinese society? These are tempting speculations, but we must remember that the available texts on this subject are few in number and not copiously supplied with useful historical details. Whatever the motives for body tattoo might have been, most texts do give a good picture of the strong and generally negative response to it, and also show that, due to this response, and for resulting practical considerations, the degree to which people were willing to reveal their personal attitudes varied widely. If necessary, robes functioned nicely to allow tattooed folk to remain in, and yet not of, the mainstream social group. Those in higher society may have judged the practice negatively, but many were also fascinated by it. Of course Duan himself may have been an extreme example of such a person, as he was the quintessential fascinated onlooker to everything “under the sun.” But his anecdotes are replete with spectators wanting to see that by which they are partly horrified; Duan was clearly not the only one who had a desire that the tattooed ones remove their robes and reveal the beautiful snake, the permanent clothing, the second skin, within. He was not the only watcher, or so he convinces us, but he was one of the only chroniclers–and we may presume that he hoped that readers would find the entries on tattoo thought-provoking and that his book would thus expand the circle of curious onlookers.
 
At the end of the last entry in the tattoo section of juan eight, Duan implies that the purpose for recording these entries on tattoo is to educate those who are shamefully ignorant of things that exist in front of their very eyes. The entire Youyang zazu, of course, may in a sense be seen as an eclectic collection of attempts to teach about one thing or another. Each such attempt has its own characteristic flavor, created by a complex set of variables, and each part derives some of its meaning from its relationship with the elements surrounding it. So, how is the section on tattoo enriched and given deeper meaning by its association with the other “ingredients” in juan eight? However unlikely it may seem at first sight, there is very likely a connection for Duan between the three topics in that juan–tattoo, dreams, and lightning and thunder–and we may speculate about Duan’s understanding of and interest in tattoo by examining their unusual placement together. I believe that he saw tattoo in some sense as a social parallel to something that is explored on meteorological and psychological planes in the other sections. Juan eight is, in general, a record of three types of “boundary crossings”: the entrance into the human world of light, sound, wonder, and danger from the heavens; the entrance into the waking, conscious world of events and things from the sleeping unconscious; and the entrance into the realm of civilized, proper folk (both “human” and “conscious,” naturally) of the markings of the uncivilized or deviant. All of these types of boundary crossings recorded by Duan leave a mark on the world that they touch, in some way changing it permanently.
 
It is important that Duan included all of the types of tattoo, even though he was clearly most interested in figurative and textual body marking. Likewise it is crucial that the four types of records (tattoo of barbarian peoples, tattoo as punishment, as mark of slavery or as personal decoration by Chinese people) are not presented in linear, chronological, topical or other specific order. I believe that this is not simply careless disorder; it may in fact reflect the conviction that flux is inherently complex and at least seemingly disorderly. One of Duan’s favorite themes throughout his larger collection is this changing nature of life. He delights in showing that change, the crossing of borders between various states of being, whether physical, social or psychological, does not happen in a chronological, predictable fashion, and in fact is continually happening, always moving in different directions. In his twenty-five entries Duan defines by example the different type of tattoos, and also shows that thei r movement–from the barbaric, low-class, and deviant realms of their origin to the world that ordinary gentlemen can see everyday–is ongoing, and is as ubiquitous, frightening, inevitable, and marvelous as various weird manifestations of lightning and dreams, that regularly cross the thresholds of the heavens and unconsciousness into our world. Tattoo for Dunn is thus a fitting “educational topic,” worthy of recording because it is representative of phenomena that require us to ponder, marvel, and re-evaluate, simply because they enter our world, exist here, and change it by leaving a mark.
 
I thank Professor Stephen H. West of the University of California, Berkeley, for numerous suggestions and corrections on an earlier draft of this paper.
 
(1.) Wang Xianqian (1842-1917), ed., Xunzi jijie (Taibei: Lantai shuju, 1972), 5.32. Cf. Xunzi (Sbby), 5.11b.
(2.) The dating of the various parts of this text is controversial. Some parts probably date from as late as the fourth century A.D., and some from as early as around 1000 B.C.
(3.) Dating from 100 B.C.
(4.) Youyang zazu, ed. Fang Nansheng (Beijing: Zhonghua shuju, 1981), 8.76-80. As all of the entries appear on these four pages, and are clearly numbered, I will not footnote them separately in the pages below.
(5.) For a readable, brief introduction to the various southern tribal groups, see Edward H. Schafer, The Vermilion Bird: Tong Images of the South (Berkeley and Los Angeles: Univ. of California Press, 1967), 9-17, 48-78. Also see Heather Peters, “Tattooed Faces and Stilt Houses: Who were the Ancient Yue?” Sino-Platonic Papers 17 (April, 1990).
(6.) Zhuangzi (Sbck), 1.14b. The Huainanzi , a collection of essays dating from before 139 B.C., is another early text that attests to the tattooing of the body with images of scaly creatures, practiced by the southern barbarians of Yue. See Huainan honglie jijie , ed. Liu Wendian (Taibei: Wenshi zhe chubanshe, 1992), 1.19.
(7.) In the Zhou period, Jing was the area later to be referred to as Chu . This was the largest of states in the Warring States period, comprising parts of modern-day Sichuan, Hubei, Hunan, Jiangxi, Anhui, Shaanxi, and Jiangsu provinces.
(8.) Han Ying (Han dynasty), Han shi waizhuan (Xuejin taoyuan), 8.1a.
(9.) On the jiao dragon, see M. W. de Visser, The Dragon in China and Japan (Amsterdam: Royal Academy of Sciences, 1913). Also see Schafer, Vermilion Bird, 217-21.
(10.) Liji zhengyi 12.16b. Pei Yin’s (fl. 450) note to a Shiji passage reiterates this information; Shiji 4.115. Also see Liu Xiang (77-6 B.C.), Shuo yuan Shuo yuan (Sbby), 11.5b. Also see Fan Ye (398-445), Hou Han shu (Zhonghua shuju, 1965), 76.2861.
(11.) Xiao Tong (501-31), comp. Wen xuan (Taibei: Zhongwen, 1971), 5.75. Translation is from David R. Knechtges, Wen xuan, or Selections of Refined Literature, vol. 1 (Princeton: Princeton Univ. Press, 1982), 419. It must be remembered that however admiring this is, the praise is of the type given to animals and fantastic creatures, not to people.
(12.) Wen xuan, 8.134.
(13.) Chen Shou (233-97), Sanguo zhi (Beijing: Zhonghua shuju, 1959), 30.854-56. For a translation of this Wei zhi passage, see Robert van Gulik, Irezumi: The Pattern of Dermatography in Japan (Leiden: E. J. Brill, 1982), 247. For a concise study of the history of tattoo in Japan, see Iizawa Tadasu’s essay, Genshoku Nihon irezumi taikan ed. Iizawa Tadasu and Fukudo Katshuiga (Tokyo: Haga shoten, 1973), 155-71, which also mentions (p. 159) the Wei zhi passage. Also see Eiichiro Ishida, Japanese Culture: A Study of Origins and Characteristics (Honolulu: Univ. of Hawaii Press, 1974), 43. See Donald Richie and Ian Buruma, The Japanese Tattoo (New York: Weatherhill, 1980), for a concise treatment in English of the Japanese tattooing tradition.
(14.) Li Yanshou (fl. 629), Nan shi (Beijing: Zhonghua, 1975), 79.1975.
(15.) Wei Zheng (580-643) et al., compilers, Sui shu (Beijing: Zhonghua shuju, 1973), 81.1824.
(16.) The Diaoti appeared in the “Wudu fu” passage above. The Diaoti people (or perhaps the practice of tattooing the forehead) are also mentioned in the Chuci poem “Zbao hun” The speaker in that passage wonders why the soul would want to go to an inauspicious place where blackening the teeth, tattooing the forehead, and human sacrifice are practiced. See Chuci buzhu , 9.328. See also Taiping yulan , ed. Li Fang et al. (Beijing: Zhonghua shuju, 1992), 790.3501.
(17.) Xin Tang shu, 217B.6147. Also see Xin Tang shu, 222C.6328 for description of other tattooing practices.
(18.) Wen xuan, 51.710.
(19.) Modern-day Sichuan.
(20.) See also Taiping guangji , ed. Li Fang et al. (Shanghai: Guji chubanshe, 1991), 482.527.
(21.) Ban Gu (32-92), Han shu [CHINESE CHARACTERS NOT REPODUCIBLE IN ASCII] (Beijing: Zhonghua shuju, 1962), 94A.3772.
(22.) According to Xin Tang shu, 58.1472, there was a book called Xuanzong shilu , and in Tuo Tuo (1313-55) et al., Song shi (Beijing: Zhonghua shuju, 1977), 203.5088, there is a notice of a book called Tang Xuanzong shilu, both in 100 juan. This Tianbao shilu could be a record no longer extant of the Tianbao period (742-56) of Xuanzong’s entire reign (reg. 712-56).
(23.) The Tang country of Rinan was in the northern part of present-day Vietnam.
(24.) The Baimin, or Bomin [CHINESE CHARACTERS NOT REPODUCIBLE IN ASCII] were a legendary people mentioned in texts such as the Shanhai jing and the Bowuzhi. They had “white” (transparent) bodies and disheveled hair. See, for example, Shanhai jing 7.42a. Imamura Yoshio takes this, however, to mean pingmin [CHINESE CHARACTERS NOT REPODUCIBLE IN ASCII] (also pingding [CHINESE CHARACTERS NOT REPODUCIBLE IN ASCII] or botu [CHINESE CHARACTERS NOT REPODUCIBLE IN ASCII], terms used to denote untrained soldiers.
(25.) This refers to Tao Hongjing (456-536) of the Liang.
(26.) This refers to Ying Bu (?-196 B.C.). As a youth he was told by a physiognomist that, once punished, he would eventually become king. He was in fact later punished and marked with tattoo, whereupon he fled to the hills to become a bandit. During the chaos at the end of the Qin, he was able to rise to power and eventually, in the Han, was “rehabilitated” and became king of Huainan. See his biography in Shiji, 91.2597-2608.
(27.) This section is not clear, and I am not sure how to translate it.
(28.) It has been speculated that the character often used for tattoo ( wen) in fact originally was a representation of a person with a tattooed chest, and the other meanings of this character were derived from this original meaning. See van Gulik, Irezumi, 5. Also see Jiaguwen bian (Beijing: Zhongguo kexueyuan, 1965), 372-73. This is refuted by Mizukami Shizuo in Kokotsu kinbun jiten (Tokyo: Yuzankaku shuppan, 1995), 590; he says that (wen) was originally a representation of a pattern or decoration on a person’s clothing. For a discussion of the ancient penal use of tattoo (as well as a brief treatment of the etymologies of certain other terms meaning “brand” or “tattoo”) in a study of the inscription on a ninth-century bronze vessel, see Sheng Zhang “Qishan xinchu Ying yi ruogan wenti tansuo,” Wenwu 1976.6: 40-42.
(29.) Xiao jing zhushu (Shisanjing zhushu) (rpt., Beijing: Zhonghua shuju, 1979), 1.2545.
(30.) For a good, brief discussion of this, see Anders Hansson, Chinese Outcasts (Leiden: Brill, 1996), 22.
(31.) Several examples are to be found in Shang shu zhengyi (Shisanjing zhushu), 3.130, in the “Shun dian,” and in 4.139 in the “Gaoya mo.”
(32.) The dating for this text is not clear, but it was written sometime during the Zhou dynasty.
(33.) Shang shu zhushu (Sbby), 8.9a.
(34.) For further information on corporal punishment and penal tattoo, in particular, see Derk Bodde and Clarence Morris, Law in Imperial China: Exemplified by 190 Ch’ing Dynasty Cases (Cambridge, Mass.: Harvard Univ. Press, 1967), 76, 96-97.
(35.) Following Legge on using “copper.” See James Legge, The Chinese Classics, vol. 3 (London: Oxford Univ. Press, 1865), 604-6.
(36.) See Shangshu zhushu 19.1 5a; Shangshu zhengyi 19.249. This passage is from the “Lu xing” (Punishments of Lu), a text that probably dates from the beginning of the Spring and Autumn period (722-481 B.C.).
(37.) See Shang shu dazhuan, attrib. Fu Sheng (2nd-c. B.C.) (Sbck), 1B.8a-b; also Xunzi jijie, 12.9, where this passage is quoted.
(38.) Han shu, 23.1091-92.
(39.) For example, see Han shu, 23.1097.
(40.) Empress Wu Zetian’s (reg. 684-705) tattooing of the female official Shangguan Wan’er (664-710) is an example of the actual continuation of the practice of tattooing as a form of punishment. See Liu Xu (887-946), comp., Jiu Tang shu , 51.2175, and Xin Tang shu, 76.3488.
(41.) Song shi, 201.5008.
(42.) Song ski, 201.5020. For specific descriptions of tattooing and exiling, see 30.561, 30.576, 33.630, 33.635, 33.742, 34.641, 63.1382, 181.4415, and 201.5016-18.
(43.) Da Yuan sheng zheng chao dianzhang Song fen ski congkan (1917), 45.16b.
(44.) Following the “Maoben” (Mao Jin’s [1599-1659] edition of Youyang zazu [found in the Xuejin taoyuan and Jin-dai mishu collectanea]), rather than the “Zhaoben” (Zhao Qimei’s [1563-1624] edition, found in Sbck), which has “three hundred.” The Zhouli has “five hundred” as welt. See Zhouli zhushu (Shisanjing zhushu), 36.242.
(45.) Following Taiping yulan in reading fang instead of kao . This book is one of the apocryphal texts, and is not extant.
(46.) See also Taiping yulan, 648.2898.
(47.) Shangshu dazhuan, 1B.8a-b. For this quotation, see also Taiping yulan, 648.2898.
(48.) Following Taiping yulan, which has , instead of the Youyang zazu texts which have This tine is difficult to understand. It is possible that the dominance of the fire “element” in the Han is credited with a greater use of tattooing over other cutting punishments, favored in other times.
(49.) This refers to Emperor Wen’s abolition of the corporal punishments of tattoo and slicing off the nose and feet. See Han shu 23.1099.
(50.) Liang chao zalu . Sui shu, 25.697-98 describes a work called the Liang lu , in twenty sections. Perhaps this is the same work. Sui shu, 25.699 says that the character is tattooed on the face in cases of serious crime. Also see Taiping yulan, 648.2898.
(51.) Sanguo zhi, 6.203.
(52.) “Cousin” here is (san zong); he was a relation with the same great-grandfather as Duan Chengshi.
(53.) I am not clear to what place this refers. In Fujian province, Longyan county , there is a Huangkeng mountain . Perhaps this is what is meant. See Imamura Yoshio, Yuyo zasso, 2: 91. However, it is possible that this is simply a local term for a real pit, or a tomb. In this piece, the latter speculation seems to make more sense.
(54.) Fang Rufu (753-94) was the son of the Prime Minister Fang Guan (696-763). See Jiu Tang shu, 111.3325.
(55.) Ms. Cui, the second wife of Fang (Fang had earlier harassed his first wife, nee Zheng, to death), was famous for her cruel and jealous behavior. Fang’s Jiu Tang shu biography mentions her whipping two servant girls to death out of jealousy, and having them buried in the snow. Although Fang, as the Prime Minister’s son, had not been inconvenienced by the death of his first wife, this new scandal caused him to be demoted, and to live separately from his wife.
(56.) For the relevant story about Shangguan Wan’er, the female official who was tattooed by Empress Wu Zetian, see Duan Gonglu, Beihulu (Baibu congshu), 3.13b-14a.
(57.) Jin ling a book in forty juan that is not extant. See Jiu Tang shu, 46.2009.
(58.) Copperas is a green hydrated ferrous sulfate.
(59.) Also see Taiping yulan, 648.2898.
(60.) Sun He (224-53) was the son of Sun Quan (d. 252), first ruler of the state of Wu (Wu Dadi [reg. 222-52]).
(61.) A version of this story also appears in Beihu lu, 3.13b. Also see Taiping guangji, 218.425.
(62.) Kong Pingzhong (fl. 1065), Kong shi tanyuan in Wu Shenglan (jinshi, 1778), ed. Yihai zuchen vol. 2 (Taibei: Yiwen, 1968), 2.13b.
(63.) Iizawa Tadasu suggests that on a battlefield, where bodies are sometimes stripped of all belongings, a tattoo is a very valuable form of identification. See Genshoku Nihon irezumi taikan, 160.
(64.) He was one of the sons of Liu Ren’gong. Perhaps Su Xun is confusing the son with the father, since Liu Ren’gong is noted elsewhere as responsible for the reinstitution of tattooing.
(65.) Bing zhi (Changsha: Shangwu, 1939), 5.44-47.
(66.) Sima wengong wenji (Shanghai: Shangwu, 1937), 5.120-21.
(67.) Song shi 193.4806. Also see Shen Defu (1578-1642), Yehuo bian buyi (1869 ed.), 3.4a. This Ming author simply records that Song soldiers had their faces tattooed to prevent desertion.
(68.) Zizhi tongjian, (Sbby), 266.14b-15a.
(69.) See Lu You (1125-1210), Lao xue’an biji in Biji xiaoshuo daguan vol. 3 (Taibei: Xinxing, 1974), 1.14b.
(70.) For example, see Chen Fu (1240-1303), An’nan jishi shi (Skqs 2.32a/b. Also see Bi Yuan (1730-97), Xu Zizhi tongjian (Sbby), 86.9a.
(71.) Yehuo bian buyi, 3.2b-3a. Also see 3.4b for more discussion of this practice.
(72.) Bizhou xuan shengyu (Taibei: Guangwen, 1970), 1.43.
(73.) See Song shi, 365.11393 and 380.11708. For another example of the same tattooed oath, see Ming shi, 272.6984.
(74.) This chuanqi drama is attributed to the Ming playwright Zhang Dafu (n.d.). See Du Yingtao, ed., Yue Fei gushi xiqu shuochang ji (Shenyang: Chunfeng wenyi, 1981), 246-50, esp. p. 249.
(75.) Huang Liuhong (fi. 1874-79), Fuhui quanshu (Baohan Iou 1879), 15.8b-9a.
(76.) Anon. (Yuan), Xinbian Wudai shi pinghua (Shanghai: Shangwu, 1926), 1.4.
(77.) Jiu Wudai shi 99.1321-41. Presumably this statement is meant to counter popular opinion to the contrary.
(78.) Shuihu zhuan (Shanghai: Shangwu, 1932), 2.28. Perhaps the tattoo gave him a kind of spiritual strength, which completed the physical martial arts training received by the youth. For another description of Shi Jin’s tattoos, see Shuihu zhuan, 2.25.
(79.) Ibid., 74.90.
(80.) Ibid., 81.7. It has been suggested elsewhere that the popularity of and fascination for figurative tattoo amongst certain social groups in Japan is a cultural phenomenon that has prevailed since the seventeenth or eighteenth century, as a direct result of the popularity of this novel in Japan. In particular, the responsibility lies with the famous woodblock-print artist Hokusai (1760-1849) and his pupils. They to a large extent created the visual images associated with the novel in Japan, which were later imported back to China. These artists portrayed as tattooed more heroes than those originally described as such in the novel; the gorgeous full-color illustrations in Japanese editions helped to fuel a tattoo craze in Japan. For a fascinating discussion of the influence of Shuihu zhuan on tattoo culture in Japan, see Robert van Gulik, Irezumi: The Pattern of Dermatography in Japan, 44-52. Also see Genshoku Nihon irezumi taikan, 162. The Ming dynasty bibliophile Hu Yinglin also mentions the tattooed her oes of Shuihu zhuan, saying “while the work is not reliable history, at least it can prove that at the time the custom was practiced.” See Hu Yinglin Shaoshi shanfang bicong 20.7a.
(81.) For more examples of literary descriptions of hulking, brave tattooed men or tattooed scofflaws, see Meng Yuanlao (fl. 1126-47), Dongjing menghua lu (Xuejin taoyuan), 7.12a. Also see Shi Hui (Yuan), Yougui ji (Xiyong xuan congshu), l.23a; and Anon. (Yuan), Xuanhe yishi (Sbby), A.22b.
(82.) Note particularly that Duan does not only describe figurative tattoo in southern localities. The capital cities of the north had their own tattoo culture, we learn.
(83.) Or, “gather in wineshops because of the snakes” (in the wine, for example), or, “carrying snakes into wineshops.”
(84.) Following the Taiping guangji, which says .
(85.) In present-day Shaanxi province.
(86.) Following Taiping guangji: .
(87.) . This may be a pun on , which means to laugh or sneer at. Other compounds with mean muddled, or confused. So here, “spirit of the gourd” could mean something like “sneering spirit,” or “muddled spirit.” Also see Taiping guangji, 263.4.
(88.) For Li’s biography, see Xin Tang shu, 131.4509-11.
(89.) Following Taiping guangji: .
(90.) Immamura Yoshio suggests that Duan Chengshi was poking fun at Zhao here, hinting at the irony in the picture of a man begging for money to restore the efficacy of a money-making tattoo (since Vaisravana is the god of wealth). See Immamura Yoshio, 2: 84. Duan might just be interested in the perceived sacred character of the tattoo’s image, the restoration of which might earn contributors the same kind of merit as the restoration of a sacred building. Also see Taiping guangji, 264.6.
(91.) Xiaojiang . I am not sure how to translate this term.
(92.) A Tang scholar-official, who, for a time, was a Hanlin academician. Wei Biaowei’s son, Wei Shan (fi. 860), was a friend of Duan Chengshi, and Duan might have heard this information from Shan. For Wei Biaowei’s biography, see Xin Tang shu, 177.5274-75, and Jiu Tang shu, 189 B.4979.
(93.) Zhang, Duke of Yan , is the famous poet and official Zhang Yue (667-731).
(94.) I cannot find this line in Zhang’s poems included in Quan Tang shi.
(95.) See Taiping guangji, 264.6.
(96.) This line is a slight misquote of a line from a poem by Yuan Zhen , a friend of Bai Juyi’s. The original reads: “It is not that, of the flowers, I love only the chrysanthemums.” See the poem “Chrysanthemum,” in Yuan shi Changqing ji (Sbby), 16.lb. Bai Juyi possibly referred to chanting Yuan’s “Chrysanthemum” poem in his piece entitled “Jinzhong jiuri dui ju hua yi yuan jiu”; see Bai Xiangshan ji (Beijing: Wenxue guji kanxing she, 1954), 13.68.
(97.) This is a line from Bai Juyi’s poem entitled “Fan Tai hu shushi ji wei zhi,” Bai Xiangshan ji, 54.66.
(98.) Also see Taiping guangji, 264.7.
(99.) I emend (stone parasol) to (stone step), though a stone parasol is not entirely inconceivable.
(100.) I am not sure how to translate this difficult passage. Here I emend sa (to drag the feet, sandal) to ji (book box, basket). An alternate rendering is, “he was able to carry a stone step and drag six hundred catties of stones behind his feet.”
(101.) They are (Dhrtarastra) (Virudhaka), (Virupaksa) and (Dhanada, or Vaisravana).
(102.) Probably Qianzhou in Sichuan.
(103.) Hyperbole for a large quantity, not a literal “gallon.”
(104.) Or “try to implore him to stop it.”
(105.) See also Taiping guangji 286.151.
(106.) The Nanzhao invasion of Shu lasted five years, starting in 829. Duan Chengshi’s friend and mentor Li Deyu took over the reconstruction and repair of the pass in 832. See Zizhi tongjian, 244.1679.
(107.) Also see Taiping guangji, 122.674.
(108.) He took this position in 835 and was demoted only two months later to the position of Revenue Manager of Qianzhou , where he died shortly thereafter. See his biography in Jiu Tang shu,.176.4561-63, and Xin Tang shu, 175.5247-49. The reasons for his demotion were apparently unrelated to the incident described here.
(109.) Following Taiping guangji:
(110.) See also Taiping guangji, 264.6-7.
(111.) See also Taiping guangji, 263.5.
(112.) This is an abbreviation for Mahasanghikavinaya, translated into Chinese by Faxian (fl. 399-416) in forty Juan).
(113.) Reading (scar) for (coiled).
(114.) I have seen no such paintings or other visual representations; this is not to say that they do not exist, of course.
 
 

 

Contemporary Perceptions of Body Modifications

and its acceptability in the Asian society: a case of tattoos and body piercings...

 
Creating Freehand Tattoo Art_The Tattoo Concierge_For Those Defining Body Art Culture_Large Slider Screen Shot
 
Abstract

Radical body modification in the form of tattooing and body piercings has experienced expanded expression, appropriation and visibility within the last several decades and has become a part of everyday life for large sections of the population. Most scholarly interest has documented the perceptual trajectories of these practices across a wide range of societal context across time. Nonetheless, observations show that most of these studies were conducted in the American and European context and a scarcity of perceptual insights on this phenomenon remains in the Asian context. Contemporary perceptions on individuals who obtain tattoos and body piercings are examined among a sample of individuals in a multi-racial Asian country – Malaysia. The present study is exploratory in nature and adopts a qualitative approach using in-depth interviews. Overall, evidence suggests that the society perceives tattooing and body piercing practices as a form of art, spirituality, immortalizing significant moment memories, self-expression and representation of the dark. Nonetheless, a degree of uncomfortableness exists among most individuals in the current study when being around with individuals with tattoos and body piercing. Further, employment opportunities are also perceived to be negatively affected. Implications and recommendations from the research findings are also presented.

 
1. Introduction

The act of body modification, such as tattooing and body piercing (Featherstone, 1999), has had a long history across various cultures, including Asia, Africa, America, Europe and Oceania (Caplan, 2000; DeMello, 1995; Dorfer & Moser, 1998; Rubin, 1988). These practices have been documented in nearly every culture and were evidently used to communicate a number of messages, including group identity, religious commitment and individuality (Armstrong, Owen, Roberts & Koch, 2002). The work of Wohlrab, Stahl & Kappeler (2007) suggests that piercings were often used in initiation rites, assigning their bearer to a certain social or age group (Gritton, 1988; Jonaitis, 1988) while the use of tattoos represented a signal to religious affiliations, strength or social status (Gathercole, 1988; Gilbert, 2001; Schildkrout, 2004).

Contemporary perceptions about individuals who have tattoos and piercings abound in the literature (Greif, Hewitt & Armstrong, 1999). More specifically, many stereotypes and judgments remain surrounding these two forms of body modification. Recent studies in the Western context have suggests that social leaders are continuing to associate the practice of piercing and tattooing with rebellious, criminals and sociopaths while other members in the society perceive such practices as a form of fashion statement (DeMello, 1993; Firmin, Tse, Foster & Angelini, 2008), as seen among popular models and celebrities (Brown, Perlmutter & McDermott, 2000).

These modern-day findings, however, are often confined to understandings from the American and European contexts. In particular, while the body of literature has expanded to provide a better understanding on the trajectories of societal perceptions and motivations towards tattooing and body piercing in Western civilizations, there seems to be a lack of understanding on the perceptual changes of these body modifications in the other parts of the world.

The present study attempts to fill in this gap. In particular, this study explores the contemporary societal perceptions of tattoo and body piercing and its acceptability in an Asian country – Malaysia. While a number of investigation strategies were plausible, Firmin, Tse, Foster and Angelini (2008) and Maxwell (2005) argues that qualitative research is often the method of choice when exploring terrain where relatively few studies previously have been conducted. A qualitative approach is, therefore, employed through the use of in-depth interviews to investigate the current research phenomenon. The outcome of this study will shed some insights on the modern-day perceptions of tattoo and body piercing and its acceptability from an Asian point of view.
 
2. Research Methods

The current study attempts to find out the perceptions and acceptance of the society in contemporary times towards the practices of tattooing and body piercing in an Asian context. The study has an exploratory nature. A qualitative approach is employed through the use of in-depth interviews. The sample is selected through mall-intercept systematic sampling at a conveniently selected shopping mall in Kuala Lumpur, Malaysia. The sample consists of twelve individuals – age eighteen to forty-six; five males seven females; five Malays, five Chinese and two Indians; non-tattooed and moderate piercing (i.e. one or two on each side for females). Responses were audio recorded and transcribed in a verbatim manner. Initial transcripts were sent back to research participants for verification and initial findings were discussed with scholars in the field of consumer behaviour and social sciences. The final findings are presented in the following section.
 
3. Results

Seven themes emerged from the data collected. Five themes relate to contemporary societal perceptions about body modification practices in terms of tattooing and body piercing. These included tattoo art, spirituality, immortalizing significant moment memories, self-expression and representation of the dark. On the other hand, two themes that emerged relates to the societal acceptance of individuals with tattoos and body piercing. These included degree of comfort around individuals with tattoos and body piercing and perceive employment opportunities. The themes are discussed below with illustrative support, supplying voice to various individuals in our sample.
 
3.1 Contemporary Societal Perceptions on Tattooing and Body Piercing

Art: From the interviews, a common theme was observed from some the responses of research participants – tattoo and body piercing are an art. To these individuals, tattooing usually involves some kind of design while body piercing involves the use of fashion accessories, in which both practices of body modification portrays a sense of artistic beauty to individuals who know how to appreciate such art.

“When you look at tattoos, it usually has some kind of design, whether it’s a good design like an angel or a bad design like skulls or devils, or even if it’s just words, it’s not really plain as it’s drawn or written with some kind of style.”

“Body piercing can be anywhere, from the ears, to the nose, lips and belly button, which is often accompanied by some kind of fashion accessory. I guess its a way of making themselves look good by applying some individual artistic talent on the self. ”

Spirituality: Spirituality was uncovered as one motivation on societal views for body medication practices such as tattooing and body piercing. Although they recognize that some individuals may pierce their bodies for reasons of spirituality, these perceptions were confined to those individuals who were older as the younger individuals in the current study did not see their peers tattooing and body piercing for the purposes of spirituality.

“Spirituality could be one of the reasons as it brings people closer to God and his teachings. Some disciples of some religions may tattoo the chanting on their backs for beliefs of mystical powers and protection whereas others may tattoo it as a religious symbol on their bodies. ”

“I often hear people tattooing for spirituality reasons but I guess that’s the older generation. The younger generations aren’t that religious anymore and you will see that most of their tattoos are to express their love to their partners or simply being artistic in nature, such as dragon and tiger tattoos or piercings on the lips and belly buttons for fashion purposes. ”

Immortalizing Significant Moment Memories: To some individuals, tattoo and body piercing represents a way to immortalize significant moment memories. These memories are usually those which represent some significant events, happenings or milestones in the timeline of the individual.

“Some of my friends have tattoos and piercings, and especially for tattoos, they tend to make new ones when something comes up in their life, such as marriage, a new born child and other milestones in life. So I guess these body modifications could represent the changes in their life and help them to recall significant happenings and immortalize memories. ”

Self-expression: Although all individuals in the current study do not have any tattoos and have moderate piercings on the ears, some individuals viewed that the practice of tattooing and body piercing is a form of self-expression. It was argued that such body modification practices enable some individuals to create a special and unique identity that is distinctive from others as they believe that it would be extremely rare to see two individuals will have the same combination of tattooing designs and body piercing accessories.

“I guess its a way of self-expression. In a way, they can “customize” themselves to the form they want others to see them as.”

“My friend once told me that he expresses himself through his tattoos such as creating new tattoos which symbolizes his love to his girlfriend. ”

Representation of the dark: Practices of tattooing and body piercing, however, are not viewed entirely in a positive light. A large majority of respondents understood that while such practices of modification may be a representation of art, for spirituality purposes, as a way of immortalizing significant moment memories and as a way of self-expression, a trend of associating individuals with tattoos and body piercings with someone who is bad, such as triad gangsters and criminals, was visible in most interview responses.

“Even though not all individuals with tattoos and body piercing are bad people, but overall, I guess there’s a negative perception on such individuals. I personally feel that individuals with tattoos and excessive body piercings are usually those who have a history with triad gangsters or may have been criminals or prisoners before.”

“It’s usually on those people who are bad, like gangsters and criminals. We don’t see such practices among our leaders in society, don’t we?”
 
3.2 Societal Acceptance of Individuals with Tattoos and Body Piercings

Degree of Comfort: Generally, most individuals expressed that they are uncomfortable with individuals with tattoos and body piercings. While some said they would not mind hanging out with these individuals as they could understand the purposes of such body modification practices, others argue that they dislike the negative associations when they are spotted handing around with individuals with tattoos and body piercings, especially those with extravagant body modifications.

“When I have to hang out with excessively tattooed and body pierced friends, I will feel uncomfortable. People around me will put their eyes on me and they will start to judge me as bad person. Same goes when I walk beside him or her Moreover-, I am afraid that I will meet one of my family members. They are afraid that I will be influenced by him or her because my family still thinks that those with tattoos and piercings are bad people”.

Perceive Employment Opportunities: The issue of employment for those with noticeable tattoo and body piercing was raised in the interviews of the current study. From the responses obtained on the societal perception and acceptability of individuals with tattoos and body piercings, it was found that a negative perception on body modification practices was prevalent and this was perceived to largely affect these individuals when they interact with others in the society, particularly when applying for a job. In particular, individuals in the current study were asked on their willingness to hire individuals with tattoo and body piercings. Results indicate that all respondents chose to hire applicants with no tattoos and body piercings (except for moderate piercings on the ears for female applicants).

“I will not hire applicant with tattoo and body piercing. It will affect the customers and the company, especially when they are required to market a product. Generally, people with tattoo and body piercing are viewed negatively by society”
 
4. Implications and Recommendations

In the last decade, tattoo and body piercing have increased tremendously in popularity, rising not only in numbers but also involving a broader range of social classes (DeMello, 2000). For some individuals, tattoos and body piercings are nothing more than fashion accessories (Turner, 1999). For other individuals, however, such practices of body modifications are perceived as negative and unsavory.

Tattoo and body piercing was first practiced as a form of cultural expression (DeMello, 2000). Individuals included tattoos and piercings to indicate their social standing, to identify themselves, and to express their religious or spiritual views. The findings of this study further adds support as individuals perceive practices of tattooing and body piercing as a spiritual practice. However in today’s modern society, tattoo and body piercing is no longer confined as a cultural expression and may not be applicable to the younger generation. Instead, some individuals perceive tattoo and body piercing as an art. There is no doubt that the number of individuals with tattoos and body piercings have increased tremendously in contemporary times, especially as its services are more accessible in the marketplace (Newman, 2006). Findings in this study further indicate that the contemporary society view tattooing and body piercings as a as a way for individuals to express themselves. This is in line with the work of Atkinson and Young (2001) who found that individuals feel that tattoos and body piercings are a permanent way to express their individuality and as an avenue to create and maintain self-identity, being special and distinctive from others. Some individuals were also found with a desire to show the world that they are rebellious, able to make important decisions, not control by their parents or anyone else, and that they are able to take the pain of receiving tattoo and piercing (Flaherty, 2005). Further, some individuals are reported to make tattoos so that they will be able to reflect back on a certain time of their life that was important or special to them.

Despite some awareness on the reasons for tattooing and body piercing practices, results show that individuals with tattoos and piercings may not be acceptable to the society at large. In particular, societal perceptions that body modification practices of tattooing and body piercing is a representation of the dark exist. It is because of such perceptions that some individuals are not comfortable being around with those who have tattoos and body piercings due to dislikes of being attached with the negative perceptions of being associated with individuals with such body modifications. Further, existing research has also found that individuals with tattoo and body piercing are often covering their noticeable tattoos or piercings when interacting with others who are skeptical perceptions. In society, especially among the older generation, individuals with noticeable tattoos or body piercings are often judged as deviant or those living outside of society, whereby these individuals may be associated as being members of triad gangsters, criminals or prisoners (Koch, Roberts, Armstrong & Owen, 2010; Lichtenstein, 2007). Moreover, parents or guardians tend to protect their child to avoid making friends with those who are tattooed and body pierced because these body modification practices are often connected as indicators of societal problems and risk-taking behavior (Carroll, Riffenburgh, Roberts & Myhre, 2002). Besides that, the presence of tattoo and body piercing may significantly influence on employment opportunities. As individuals with excessive tattoo and body piercing are judged negatively, the society and employers may have pre-conceived negative evaluations on such individuals. Thus, when it comes to employment, individuals with excessive body modification may face more difficulty to secure a job as compared to individuals without body modifications. Notably, individuals in the current study further indicate a preference to hire applicants with no tattoos and body piercings. In the work of Bekhor, Bekhor and Gandrabur (1995) it was found that the number of individuals requesting of tattoos and body piercing removal is on an increasing trend, in which the reason revealed behind their removal was in order to obtain employment. For this reason, it could be shown that the presence of visible tattoos and body piercings militated against the employment of job seekers.

From the findings of the current study, it is arguable that body modification practices of tattooing and body piercing remains less acceptable among individuals in an Asian society. A high degree of stereotyping and negative pre-conceived evaluations of individuals with tattoos and body piercing may exist among Asian individuals. To avoid being associate with negative evaluations, it is recommended that excessive tattooing and body piercing should be avoided as it will cause others in the society to feel uncomfortable and insecure with such presence. More importantly, it is important that social marketers and educationists inform and educate the society on the consequences of body modification practices of tattooing and body piercing, including potential negative evaluation of others in the society, influence on employment opportunities, and the difficulty of future removal and recovery. In events where individuals want to remove tattoos, there is some light afforded through technology advance. In particular, the development of pulsed lasers, such as the Q-switch Nd: YAG and Q-switched Ruby, has made it possible to remove or significantly fade tattoos without residual scarring (Kilmer & Anderson, 1993).
 
5. Conclusions, Limitations and Future Research Directions

This study has, hopefully, provided some exploratory insights on the contemporary societal perceptions of tattoo and body piercing and its acceptability in an Asian context. The study concludes that the society may perceive tattooing and body piercing practices as a form of art, spirituality, immortalizing significant moment memories, self-expression and representation of the dark. However, the society may have a degree of uncomfortableness when being amongst individuals with tattoos and body piercings. Employment opportunities are also found to have a potential to be negatively affected. Recommendations from the research findings were also afforded, including a need to avoid having excessive tattooing and body piercing; the need to inform and educate the society on the consequences of body modification practices of tattooing and body piercing; and the technological advancement opportunities afforded to remove or significantly fade tattoos without residual scarring. Nonetheless, this study is limited in generalizability due to its small sample size. The integrity of the research results, however, can be uphold as the study is the first of its kind in providing some exploratory insights into the current societal perceptions of tattoo and body piercing and its acceptability in an Asian context. Future studies are encouraged to include a larger sample and expand its scope to include a cross-cultural comparison. Further, the insights from this study represent the responses from a third party view – none of the research participants had tattoos or body piercings (except on the ears for females). It will be potentially fruitful to gain some firsthand insights on the investigated phenomenon among individuals who actually have tattoos and body piercings and look at the responses from their point of view.

 

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Copyrights

Copyright for this article is retained by the author(s), with first publication rights granted to the journal.

This is an open-access article distributed under the terms and conditions of the Creative Commons Attribution license (http://creativecommons.org/licenses/by/3.0/)

Weng Marc Lim1, Ding Hooi Ting1, Elvis Leo1 & Cassandra Jayanthy1

1 School of Business, Monash University, Australia

Received: April 2, 2013 Accepted: May 15, 2013 Online Published: August 1, 2013

doi:10.5539/ass.v9n10p37 URL: http://dx.doi.org/10.5539/ass.v9n10p37
 
 

 

Body Modifications in College Students

considering gender, self-esteem, body appreciation, and reasons for tattoos...

 
College-Tattoos---Reasons-Behind-Getting-Body-Art---The-Tattoo-Art-And-Education-Academic-Library---The-Tattoo-Concierge
 
Body modifications are becoming mainstream as more individuals are becoming tattooed. Using a convenience sample of college students, participants with and without tattoos were compared on measures of body appreciation, self-esteem, and need for uniqueness. Among these central Texas students 44% had at least one tattoo. Women, compared to men, were significantly more likely to have tattoos and also a facial piercing (other than ears) but scored lower on body appreciation and self-esteem. Body appreciation and self-esteem were correlated for both men and women together as well as separately. Top reasons given for getting tattooed included “To express myself,” “To be an individual,” and “To be unique.” As tattoos become more common, fewer differences between college students with and without tattoos will be found; tattoos may be one mode of expressing individuality rather than a connotation of deviance.

 
Introduction

Body modification, altering the body via adornments such as tattoos and piercings, have evolved over the last century into a more mainstream cultural experience (Featherstone, 1999; Laumann & Derick, 2006; Swami, 2011). At one point, tattoos were markers of out-groups of individuals considered deviant from society and affiliated with criminal activity (Demello, 1993; Swami, 2011). Sailors branded themselves to display conquests and experiences out at sea while inmates used modification to show affiliation with gangs, mobs, and to express ranking within an organization (Demello, 1993; Sanders, 2008). From an underground activity origin, tattoos have developed into a commonplace form of art in alternative lifestyles and pop culture (Swami, 2011; Swami & Harris, 2012; Wohlrab, Stahl, & Kappeler, 2007).

Although the application of sub-cultural identity theory to body modifications (Koch, Roberts, Armstrong, & Owen, 2010) may be relevant for individuals identifying with deviant social groups, social learning theory may be more applicable for explaining the more mainstream acquisition of and acceptance of tattoos. According to Bandura, learning occurs through modeling and imitation (Bandura, 1977). The media, as one source of highly acclaimed models, has had a hand in influencing body modifications. Popular and admired individuals like celebrities may be revered as role models and their behaviors imitated by others. In addition, in the entertainment field body modifications are a common trend, and individuals who hold role models with tattoos in high regard may be more likely to imitate their behavior by obtaining tattoos themselves.

Modeled behaviors which have positive consequences are likely to be repeated. The act of body modification may be reinforced by the positive reactions individuals receive after copying the behavior (e.g. obtaining a tattoo), which then evokes feelings of pride and identity. Media and celebrities endorsing modifications or modeling body modification lifestyles then help to bridge the gap from an alternative lifestyle by popularizing and thus normalizing the obtainment of tattoos. In fact Laumann and Derick (2006) reported a 24% tattoo rate in a national sample in the U.S.

Even though celebrities have contributed to the popularization of tattoos, Swami and Harris (2012) describe other factors that have played a role as well, including better safety, more options in design, and greater numbers of available artists. Older individuals may be less likely to obtain tattoos, and women, compared to men, may have more concerns about pain and health risks associated with obtaining tattoos (Dickson, Dukes, Smith, & Strapko, 2014). However, some recent research with college student samples has reported a higher percentage of females than males with tattoos (King & Vidourek, 2013; Nathanson, Paulhus, & Williams, 2006) although men in a German sample had a greater number of tattoos than women (Wohlrab, Stahl, Rammsayer, & Kappeler, 2007).

Popular reasons for getting tattooed include self-expression and representations of bonds/connections with friends or family (Dickson, Dukes, Smith, & Strapko, 2015; King & Vidourek, 2013). Although “aesthetic self-distinction” was listed as a reason by 13% of Dickson et al.’s (2015) sample, about 15% of King and Vidourek’s (2013) sample disagreed with the statement that they got a tattoo “to be fashionable.” Although neither Dickson et al. (2015) nor King (King & Vidourek, 2013) report gender differences, perhaps traditional gender roles could impact individuals’ reasons. Perhaps women would be more likely to get tattoos for aesthetic or appearance enhancement reasons, fitting Wohlrab and colleagues’ (Wohlrab, Stahl, & Kappeler, 2007) “beauty, art, and fashion” category, while males would consider getting tattoos for reasons related to risk or toughness, perhaps related to a “physical endurance” category (Atik & Yildirm, 2014; Wohlrab, Stahl, & Kappeler, 2007).

Motivations for body modification may also be related to personality characteristics that are associated with having one or more tattoos. Individuals with tattoos may be higher in risk taking tendencies, including legal (multiple sexual partners) and illegal (being arrested, drug use) activities (Deschesnes, Fin[]s, & Demers, 2006; Koch et al., 2010; Roberts & Ryan, 2002). Using a sample of students from the University of British Columbia, Nathanson and colleagues (Nathanson et al., 2006) reported that deviance markers, including tattoos, were positively associated with openness to experience and subclinical psychopathy but negatively associated with self-esteem.

Additional personality traits differentiating those with body modifications from those without have been considered (Swami, 2012; Swami, Pietschnig et al., 2012; Tate & Shelton, 2008; Wohlrab, Stahl, Rammsayer et al., 2007). Swami and colleagues (Swami, Pietschnig et al., 2012) reported that, in a central European sample, individuals with tattoos scored higher, compared to those without, on need for uniqueness, extraversion, and experience seeking (subscale of sensation seeking). Others have also reported higher levels of sensation-seeking (Wohlrab, Stahl, Rammsayer et al., 2007) and need for uniqueness (Swami, 2012; Tate & Shelton, 2008; Tiggemann & Golder, 2006; Tiggemann & Hopkins, 2011) in tattooed versus non-tattooed individuals. In addition, Tate and Shelton (2008) reported that individuals with tattoos, compared to those without, scored lower on conscientiousness and agreeableness although others (Swami, Pietschnig et al., 2012;) using Big Five personality measures did not find these differences.

Although differences have been reported related to need for uniqueness, research comparing tattooed and non-tattooed individuals on appearance investment (Tiggemann & Golder, 2006; Tiggemann & Hopkins, 2011) or on the perception of one’s body’s attractiveness (Wohlrab, Stahl, Rammsayer, et al., 2007) has not found significant differences. However, in prospective research comparing individuals before obtaining tattoos and after obtaining tattoos (immediately and three weeks later), Swami (2011) reported a significant increase in body appreciation and self-esteem at the three weeks testing time, compared to the initial testing, as well as a gender difference with men having higher body appreciation than women.

As tattooing continues to become more mainstream, especially among college students, we wanted to examine possible individual differences between those who do and do not choose to modify their body as well as possible reasons for such modifications. In addition, gender differences related to body modifications, body appreciation, self-esteem, uniqueness, and reasons for body modification were considered.

In line with the literature just reviewed, we hypothesized the following:

1. Individuals with tattoos, compared to those without, will score higher on need for uniqueness (Tate & Shelton, 2008; Tiggemann & Golder, 2006; Tiggemann & Hopkins, 2011) but lower on self-esteem (Nathanson et al., 2006) and body appreciation.

2. Consonant with societal gender roles, we predicted that women would score lower on body appreciation (Swami, 2011; Tylka, 2013) and self-esteem (Sprecher, Brooks, & Avogo, 2013) and that women would more often give reasons related to appearance for body modifications. Men, on the other hand, would be more likely to give reasons related to risk-taking and toughness.

3. A significant interaction between gender and tattoo presence was predicted, with women, but not men, with tattoos scoring lower on body appreciation and self-esteem since women may be more likely to use tattoos to impact their appreciation of their bodies.

 
Participants

College students (88 male, 212 female) in a teaching theater, lifespan development psychology class at a central Texas public university participated by completing an anonymous questionnaire for a small amount of extra credit following an exam. Among these students, the largest number (120, 39.7%) were liberal arts majors, followed by health professions (54, 17.9%), applied arts (51, 16.9%), science (46, 15.2%), and business (23, 7.6%). The classifications of students included freshmen (9, 3.0%), sophomores (88, 29.1%), juniors (121, 40.1%), seniors (82, 27.2%), and graduate students (1, .3%). The majority (54.0%) identified their ethnicity as Caucasian, with 30.1% identifying as Hispanic, 8.3% as African American, 3.3% as Asian American, and 4.0% as other.
 
Materials and Procedure

Participants initially provided demographic information related to their age, gender, ethnicity, classification, college major, and GPA. Participants then completed the Rosenberg Self Esteem Scale (RSES; Rosenberg, 1965), followed by items assessing reasons for having tattoos (Tiggemann & Golder, 2006), four items assessing uniqueness preference (Lynne & Harris, 1997), and the Body Appreciation Scale (BAS; Avalos, Tylka, & Wood-Barcalow, 2005). At the end of the survey participants were asked if they had tattoos and if so, how many pieces of art they had on their body. An item assessing whether or not the students had facial piercings (other than ears) was also included.

The RSES (Rosenberg, 1965) is a ten-item scale measuring the amount of self-worth an individual has. The RSES uses a 4-point Likert scale with possible responses ranging from “strongly disagree” (1) to “strongly agree” (4). Some questions listed in the RSES related to self-esteem include, “I feel that I am a person of worth, at least on equal plane with others, “I feel that I have a number of good qualities,” and “I take a positive attitude toward myself.” Reliability for the RSES items was .87 among these participants. Mean scores on the RES were computed for each individual.

The reasons for obtaining tattoos measure lists 19 items describing possible motivations/reasons for obtaining tattoos (Tiggemann & Golder, 2006). For simplicity we asked participants to either agree or disagree with the statement listed (e.g. yes or no) rather than using a Likert-scale. Some of the statements listed included obtaining tattoos “Because they look good,” “Because I like taking risks,” “To look attractive,” “To be unique,” and “To look tough.”

The four uniqueness items come from Lynn and Harris’s (1997) Self-Attributed Need for Uniqueness Scale (SANUS); an example is, “I prefer being different than other people.” Items were rated using a 5-point Likert scale and had a Cronbach’s alpha of 0.79 in our data.

The BAS (Avalos et al, 2005) includes 13 items measuring body image. Item examples are “I respect my body” and “On the whole, I am satisfied with my body”; items are rated using a 5-point Likert scale ranging from 1-“never” to 5-“always.” BAS items were scored by totaling the 13 items for each participant, with higher scores indicative of a more positive body image. In this sample the BAS had a Cronbach’s alpha of 0.91.
 
Results

Out of 300 participants, 134 reported having tattoos (44%). In addition, of the participants who had tattoos, 61 individuals (46%) reported having tattoos on visible parts of the body (arms, hands, face, neck, legs). In terms of numbers of tattoos, 68 participants indicated they had one tattoo, 32 indicated two tattoos, 15 indicated three tattoos, and 19 indicated having four or more tattoos. Furthermore, 42 participants (14%) reported having facial piercings other than ear piercings.

Frequencies by gender for the most popular reasons for obtaining tattoos are given in Table 1. All other reasons were checked by fewer than 40 people, with the least frequently indicated item, “Because my friends are tattooed,” only chosen by six individuals.

To compare frequencies for men and women having a tattoo (no tattoos versus having one or more tattoos), having a visible tattoo, and having facial piercings, three 2 X 2 chi squares were performed. A higher percentage of females (51%) than males (31%) indicated that they had one or more tattoos, [chi square] (1) = 10.08, p < .01, [PHI] = .19; similarly, a greater proportion of women (19%) than men (5%) had facial piercings (other than ears), [chi square] (1) = 8.04, p < .01, [PHI] = .18. However, of those individuals having tattoos, women (44%) and men (41%) were not significantly different in the proportion with visible tattoos. Six chi square analyses were also conducted to examine the gender difference in hypothesized reasons for obtaining tattoos ("to look attractive," "to be fashionable," "because they look good," "because I like to take risks," "to have a beauty mark," "to look tough"). Two of the six comparisons were significant with 6% of the men and 22% of the women indicating that "to have a beauty mark" was a relevant reason for them, [chi square] (1) = 437, p < .05, [PHI] = -.17; and 21% of the males, versus 2% of the females, indicating that "to look tough" was a reason for them to acquire a tattoo, [chi square] (1) = 16.10, p < .001, [PHI] = .33 To compare male/female means as well as means for those with and without tattoos, a MANOVA was performed on self-esteem, body appreciation, and need for uniqueness scores, with participant and tattoo presence (no tattoos, one or more tattoos) as the factors. The only significant effect was for participant sex, F (3,275) = 3.42, p < .02, [[eta].sub.p.sup.2] = .04. Participant sex was significant for both self-esteem, F (1,277) = 7.04, p < .01, [[eta].sub.p.sup.2] = .03; and body appreciation, F (1,277) = 8.87, p < .01, [[eta].sub.p.sup.2] = .03. The presence of tattoos did not differentiate participants on these variables nor were there any significant interactions between participant sex and the presence of tattoos. Descriptive data for these comparisons are given in Table 2. Correlations were performed for body appreciation, self-esteem, and uniqueness scores. Body appreciation was positively correlated with both self-esteem, r (284) = 0.59, p < .001; and with total need for uniqueness score, r (291) = .16, p < .01. Need for uniqueness and self-esteem were also correlated, r (290) = .21, p < .001. In addition, correlations were performed by sex. Body appreciation was still correlated to self-esteem for both women, r (206) = 0.61, p < .001, and men, r (77) = 0.53, p < .001. Need for uniqueness also correlated with self-esteem for both men, r (80) = 0.31, p < .01; and women, r (209) = 0.19, p < .01. However, need for uniqueness and body appreciation were significantly correlated for men only, r (81) = 0.33, p < .01.   Discussion In this central Texas college student sample, 44% of the participants had tattoos, providing support that tattoos have become more common, accepted, and mainstream. Females were significantly more likely than males to have both tattoos and facial piercings (other than ears) in agreement with some previous research (King & Vidourek, 2013; Nathanson, Paulhus, & Williams, 2006). However, contrary to previous research (Nathanson, et al., 2006; Tate & Shelton, 2008; Tiggermann & Golder, 2006; Tiggemann & Hopkins, 2011), our data did not support the hypothesized differentiation of need for uniqueness, self-esteem, and body appreciation by the presence of tattoos. Perhaps as tattooing becomes more common among college students, such differences are diminishing. Even though the need for uniqueness did not differentiate those with and without tattoos, the two most frequently given reasons for obtaining tattoos, "To express myself' and "To be an individual," suggest that wanting to be unique is a common reason for obtaining tattoos. We did not find significant interactions related to the constructs of self-esteem and body modification by participant sex, but we did find the predicted differences between males and females in self-esteem and body appreciation, as has been previously reported (Sprecher et al., 2013, Tylka, 2013). Females overall had lower scores than males on the Body Appreciation Scale and on the Rosenberg Self-Esteem measure. Of the six gender comparisons related to hypothesized reasons for obtaining tattoos, two reasons, "to look tough" and "to have a beauty mark," were significant, with men indicating the former reason more frequently and women indicating the latter reason more frequently. On three of the four appearance-related reasons, the proportion of men and women were not significantly different. Perhaps appearance-related reasons are a factor for both men and women these days; 46% of the men and 50% of the women indicated that "because they look good" was a reason they obtained a tattoo. Similarly, Swami (2011), comparing before/after tattooing scores, reported that both men and women had lower appearance-related anxiety and higher body appreciation after obtaining tattoos. Some limitations of the research conducted in this study include the sampling size and related demographics, including the smaller proportion of males in the sample. The sampling population of college students from a central Texas university may not necessarily be generalizable to other college students in the U.S and beyond. In spite of these sampling limitations, this research contributes by examining body modification through a modern lens based on its rising popularity among college students in the 21st century, using gender comparisons to explore issues related to body appreciation, self-esteem, need for uniqueness, and reasons for obtaining tattoos. In this sample, women compared to men were lower in body appreciation and self-esteem, but they were significantly more likely than men to have a tattoo and facial piercing other than ears. Women, compared to men, were also more likely to indicate that having a beauty mark was a reason they got a tattoo. Perhaps for some women having tattoos is an act of rebellion against conforming to appearance norms, appreciating their own bodies in unique ways. As Western societies change, exploring body modification motivations and correlates will help us better understand the bi-directional process of creating and responding to appearance-related expectations for both women and men.

BRITTANY M. HILL | S. M. OGLETREE | K. M. MCCRARY

Texas State University
 
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Sanders, C. R. (2008). Customizing the body: The art and culture of tattooing. Philadelphia: Temple University Press.

Sprecher, S., Brooks, J. E., & Avogo, W. (2013). Self-esteem among young adults: differences and similarities based on gender, race, and cohort (1990-2012). Sex Roles, 69: 264-275.

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Table 1 Frequencies by Gender: Reasons
for Obtaining Tattoos
 

Frequency (%)

Reason Males Females

To express myself 27 (77%) 100 (88%)
To be an individual 23 (66%) 74 (66%)
To be unique 23 (66%) 70 (62%)
They celebrate an occasion/person 19 (53%) (1) 74 (65%)
To be creative 19 (54%) (1) 72 (64%)
Because they look good 16 (46%) 56 (50%)
To feel independent 17 (47%) 51 (46%)
To control my body 11 (31%) 44 (39%)
Because I like to take risks 13 (38%) 39 (35%)
To look attractive 10 (29%) 42 (38%)
 
(1) Percentages are slightly different because of different
numbers of people completing the question.
 
Table 2 Descriptive Data By Gender and
Tattoo Presence for Self-esteem, Body
Appreciation, and Uniqueness Scales

 

Mean (SD)

Females Males

Scale Tattoo No Tattoo No
Tattoo Tattoo

Self-esteem 3.22 3.22 3.41 3.40
(.52) (.46) (.57) (.43)

Body 45.61 46.07 50.73 48.60
Appredation (8.96) (9.23) (9.15) (8.52)

Uniqueness 11.87 11.82 12.04 11.81
(2.84) (2.68) (3.18) (2.48)

Note. Scores for Body Appreciation and Uniqueness
represent total scores whereas the individual
mean Self-esteem scores were used.

 
Hill, Brittany M., Ogletree, S. M., McCrary, K. M., College Student Journal

 
 

 

Copyright Protection for Tattoos

the practice and ritual of tattooing human skin has existed in all parts of the world and in most cultures...

 
Copyright For Tattoos - Modern Tattoo Articles - Unique Tattoo Artwork  | The Tattoo Concierge | www.TattooConcierge.com | The Artists Choice
 

Are Tattoos Copies? The practice and ritual of tattooing human skin has existed in all parts of the world and in most cultures for thousands of years. (2) The modern history of tattooing in Western cultures can be traced to the voyages of Captain James Cook to the South Pacific, where sailors encountered various Polynesian tribes among which tattooing was, and remains today, an important cultural practice and spiritual ritual. (3) When these sailors, many of whom had adorned their bodies with tattoos, returned to Europe, they ignited an interest in tattooing known as the “tattoo rage,” which spread through nineteenth-century Europe. This interest in tattooing eventually crossed the Atlantic Ocean to America (4) and, by 1891, due in large part to the development of the first electric tattoo machine by American tattoo artist Samuel O’Reilly, the practice of tattooing began to permeate American society. (5)
 
During the early era of tattooing in America, tattoos were generally associated with sailors, criminals, and circus performers–the artistic value of tattoos received minimal, if any, recognition. In recent decades, tattoos have moved from their counterculture origins into mainstream American society, garnering an appreciation as a valid form of art. Today, tattoos are displayed prominently on the bodies of celebrities and athletes, (6) and they have been the subject matter of exhibits at museums and art galleries. (7) Television shows such as Miami Ink and Ink Master have increased the popularity of tattoos as an art form and have contributed to their increasing social acceptance. (8) As of 2012, approximately twenty-one percent of Americans had at least one tattoo; (9) for Americans under forty years of age, the percentage with at least one tattoo rose to almost forty percent. (10) This increase in the popularity and prevalence of tattoos has led to an estimated tattoo industry annual revenue growth of 2.9% between 2009 and 2014, resulting in an approximate revenue of $3.4 billion. (11)
 
Tattoo artists are aware of the purpose and protections of the United States’ intellectual property regimes. (12) Recently, tattoo artists have initiated lawsuits alleging their possession of intellectual property rights in their works under the United States’ copyright regime. Since 2005, three individual tat too artists have brought lawsuits alleging copyright infringement of their works–either of tattoos based upon preliminary drawings or tattoos created contemporaneous to their application in the client’s skin. The first two cases, Reed v. Nike, Inc, (13) and Whitmill v. Warner Brothers Entertainment, Inc., (14) settled without going to trial; the third case, Escobedo v. THQ Inc., (15) was dismissed for lack of prosecution. After these cases, questions regarding the applicability of the copyright laws to tattoos remain unanswered. While the basic application of the copyright statute indicates tattoos are likely copyrightable subject matter, the courts should be cognizant of the negative policy implications that could arise should tattoos be granted copyright protection.
 
The focus of this Note is on tattoos on human skin, not on a tattoo artist’s drawings, “flash art,” or other forms of art utilized by tattoo artists as inspiration for a tattoo. (16) Therefore, as a preliminary matter, throughout this Note, the term “tattoo” shall be intended to mean the actual work applied to human skin rather than an embodiment of the work in any other form.
 
This Note argues that, although “flash art” and other drawings upon which a tattoo may be based are likely copyrightable subject matter under the Copyright Act of 1976 (17) (Copyright Act), the policy implications of granting copyright protection to tattoos militate against extending such protection. To avoid these consequences, the copyright statute should be interpreted as failing to include the human body as a “copy” within the scope of the Copyright Act and, therefore, tattoos would not be subject to the protection of the Act.
 
Part I provides a background on the statutory framework of the Copyright Act, including the requirements for copyrightable subject matter, copyright ownership, and the exclusive rights granted by the Copyright Act to the copyright owner. Part II provides an overview of three cases in which tattoo artists have alleged that their tattoos, or their drawings upon which a subsequent tattoo are based, are copyrightable subject matter. These tattoo artists have alleged infringement of their works based upon a subsequent reproduction or display of their tattooed work.
 
Part III begins by addressing whether, as a preliminary matter, a tattoo would generally meet the Copyright Act’s copyrightability requirements. Part III then presents several negative policy issues that would likely arise should copyright protection be extended to tattoos. It concludes by arguing that tattoos are not “copies” as defined under the Copyright Act and therefore, they are not subject to copyright protection.
 
I. U.S. COPYRIGHT LAW

The Intellectual Property Clause in Article I of the U.S. Constitution expressly grants Congress the authority to establish federal copyright law. (18) In the United States, copyright law is an area regulated exclusively by the federal government pursuant to the Copyright Act. The Copyright Act grants copyright protection to “original works of authorship fixed in any tangible medium of expression” (19) that fall within one of eight enumerated categories of “works of authorship.” (20) This Part will discuss the elements of copyrightable subject matter, how ownership of a copyright is established, and the exclusive rights conferred by the Copyright Act upon a copyright owner.
 
A. Copyrightability
 
Under [section] 102(a), federal copyright protection is extended to “original works of authorship fixed in any tangible medium of expression.” (21) In other words, [section] 102(a) requires the satisfaction of two elements for a work to be considered copyrightable: fixation and originality. The following subsections provide an overview of these two requirements.
 
1. The “Fixation” Requirement
 
The first requirement of copyrightable subject matter is fixation, which requires a work of authorship to be “fixed in any tangible medium of expression.” (22) The primary function of the fixation requirement is to establish the point in time at which a work exists that may be eligible for copyright protection. (23) The medium in which the work is fixed is irrelevant to the analysis of fixation, as the Copyright Act was intended to encompass a broad scope of mediums of expression from paint on canvass to those mediums that require the assistance of technology to enable human perception, as in the case of computer software. (24) The duration of fixation need only be for “more than transitory duration,” (25) which means the fixation requirement may be satisfied even if the fixation is temporary. (26)
 
2. The “Originality” Requirement
 
The second requirement of copyrightable subject matter is originality, which limits the grant of copyright protection to “original works of authorship.” (27) When drafting the Copyright Act, Congress purposely adopted the phrase “works of authorship” (28) rather than utilizing the constitutional terms “Writings” and “Authors” (29) with the express intention of “avoiding] exhausting the constitutional power of Congress to legislate in this field” (30) by making the scope of the copyright statute narrower than the authority granted to Congress by the Constitution. In addition, Congress purposely left the phrase “original works of authorship” undefined with the intention of incorporating into the Copyright Act the definition of originality that had been developed through the courts’ prior copyright jurisprudence. (31) Therefore, the interpretation of the current originality standard may be based upon caselaw preceding the Copyright Act.
 
In Feist Publications, Inc. v. Rural Telephone Service Co., (32) the Supreme Court articulated the current definition of originality. Remarking that originality is the sine qua non of copyright law, the Court promulgated a two-prong originality standard, which requires that “the work [be] independently created by the author … and that it possesses at least some minimal degree of creativity.” (33) The Court elaborated further that “the requisite level of creativity is extremely low” and that most works will satisfy the requirement “as they possess some creative spark, no matter how crude, humble or obvious it might be.” (34) The Feist standard presents a relatively low hurdle for copyrightability. When conducting an originality analysis, the artistic merit of the work in question is not to be considered by the court. (35) “‘Original’ in reference to a copyrighted work means that the particular work ‘owes its origin’ to the author. No large measure of novelty is necessary.” (36) Furthermore, “a ‘copy of something in the public domain’ will support copyright if it is a ‘distinguishable variation.'” (37)
 
In many circumstances, a work of authorship will most certainly consist of an author’s independently created expression that satisfies the requisite threshold level of creativity. At the opposite end of the spectrum, cases may arise where it is equally certain that works, such as letters or common geometric shapes, have not been created independently by the author and do not have the necessary minimum amount of creativity. (38)
 
B. Establishing Copyright Ownership
 
Once a work has been determined to be copyrightable, it is necessary to identify the proper owner of the copyright who will possess the rights conferred by the copyright statute. Section 201(a) provides that initial ownership of the copyright in a protected work vests in the author or authors of the work. (39) The following subsections will provide an overview of the forms of authorship recognized by the Copyright Act.
 
1. Sole and Joint Authorship
 
The concept of sole authorship is most clear when, for example, the purported author is the single writer of a novel or painter of a painting. But what if multiple people are involved in the creation or production of a work?
 
Copyright protection subsists in works that are “representatives of [the] original intellectual conceptions of the author.” (40) Even if the efforts of numerous people are utilized to produce a work, a work may only have one author who was the single person to whom the “original intellectual conceptions” of the work may be attributed. (41) Whether this is the case is not always clear, and disputes over authorship are often the basis for litigation, requiring the courts to conduct a fact-intensive inquiry to differentiate between works of sole authorship and joint works.
 
The Copyright Act defines a “joint work” as “a work prepared by two or more authors with the intention that their contributions be merged into inseparable or interdependent parts of a unitary whole.” (42) While the circuit courts are not in complete agreement on the proper method for determining joint authorship, several courts require that each “author’s” contribution to the work be independently copyrightable and that each purported author intended to be coauthors of the work. (43) This requirement would seem to be consistent with the Copyright Act’s requirement that to obtain a copyright, a person must be an author under the statute.
 
When considering whether two or more people intended to be joint authors of a work, the courts have considered factors such as the delegation of decision-making authority, how the parties billed or credited themselves with respect to the work, and the content of written contracts. (44) Courts also consider the objective manifestations of intent of the parties to be coauthors. (45) Ultimately, if two or more parties are determined to be joint authors of a work, they will receive an equal interest in the work that is both inheritable and devisable. Furthermore, permission of all coauthors will be required for an assignment or exclusive licensing of the work.
 
2. “Works Made for Hire”
 
The Copyright Act provides that the copyright in a work prepared by an employee may belong to the employer if the work qualifies as a “work made for hire.” (46) To qualify as a work made for hire, a work must either be prepared by an employee within the scope of his or her employment or specially ordered for use in a collective work, so long as the parties expressly agree that the work is a “work made for hire.” (47)
 
The Copyright Act does not define either the term “employee” or the phrase “scope of employment,” which has required the courts to interpret this statutory language. In Community for Creative Non-Violence v. Reid, (48) the Supreme Court held that the term employee carries its common law agency meaning, promulgating twelve factors that should be considered by a court when determining whether a hired party is an employee under agency law. (49) Subsequent caselaw has identified two of the factors–the provision of employee benefits to, and the tax treatment of, the hired party–as the most significant. (50)
 
If a hired party is not an employee under Reid, the “work made for hire” doctrine may still apply if the hired party is determined to be an independent contractor; however, two requirements must be satisfied. First, the purpose of the work must be for use as a contribution to a collective work that falls within one of the categories enumerated in [section] 101. (51) To satisfy the second requirement, the parties must expressly agree that the work will be considered a “work made for hire.” (52)
 
C. The Copyright Owner’s Exclusive Rights
 
The owner of a copyright under the Copyright Act is granted certain exclusive rights in the copyrighted work. These include the exclusive right to reproduce the copyrighted work, to prepare derivative works based on the work, to distribute copies of the work, and to display the work publicly. (53) Along with the exclusive right to exercise these rights, the copyright owner also possesses the right to authorize or license others to exercise these exclusive rights. (54) Furthermore, the ownership of the copyright in a work “may be transferred in whole or in part by any means of conveyance or by operation of law” and is inheritable and devisable. (55)
 
In addition to the rights granted under the Copyright Act, Congress enacted the Visual Artists Rights Act of 1990 (VARA), which provides protections for an author’s moral rights in a work. (56) The protections granted by VARA are restricted to authors of “work[s] of visual art.” (57) Works of visual art protectable under VARA are defined under [section] 101 as “a painting, drawing, print, or sculpture, existing in a single copy, in a limited edition … signed and consecutively numbered by the author.” (58)
 
The protections granted by VARA include the right of attribution and the right to integrity. The right of attribution bestows upon the author of a work of visual art the right to claim authorship of his or her work, to prevent use of the author’s name in relation to any work of visual art not created by the author, and to prevent use of the author’s name in relation to his or her work of visual art if that work has been modified, distorted, or mutilated in a way that would be prejudicial to the author’s honor or reputation. (59) The right to integrity not only protects the physical integrity of the work, but is also meant to protect the creative integrity of the author. (60) Therefore, the right of integrity is intended to “prevent any intentional distortion, mutilation, or other modification of th[e] work which would be prejudicial to [the author’s] honor or reputation” as well as “any destruction of a work of recognized stature.” (61)
 
There are several limitations on the moral rights conferred upon the author under VARA. First, any modification of the work of visual art that is the result of the passage of time or the nature of the materials used in the work does not amount to a violation of the statute. (62) Second, any modification of the work of visual art that is the result of conservation efforts or public presentation likewise does not fall within the protections of VARA. (63) The third exception denies protection if a work of visual art is used in connection with a work that is excluded from VARA under a subsection of [section] 101. (64)
 
Unlike the exclusive rights granted under the Copyright Act, the rights granted under VARA are not transferable; however, they may be waived. (65) A valid waiver must be expressly provided in a written instrument signed by the author and identifying the specific rights waived. (66)
 
II. THE CASES
 
The copyrightability of tattoos under the Copyright Act is an issue of first impression in the courts, and, as of yet, no lawsuit has proceeded to trial. Since 2005 three tattoo artists have brought individual lawsuits alleging that their tattoo–or at least the drawings upon which a subsequent tattoo were based–were copyrightable subject matter, that they were the owners of the copyright, and that their exclusive rights had been infringed. Each of these cases has been either settled or dismissed, leaving this question unanswered. American society is constantly progressing in the area of “Science and useful Arts,” (67) which requires the courts to consider how new–or in the case of tattoos, newly accepted–forms of creative expression and technologies fit into the existing intellectual property regime. While it could be argued that resolution of the questions presented in the following cases is analogous to the courts’ task of determining how other forms of expression fit into the copyright law, there is one marked difference–in these cases, the “tangible medium of expression” (68) involved is human skin.
 
A. Reed v. Nike, Inc. : The Rasheed Wallace Tattoo
 
On February 25, 2005, Matthew Reed, a Portland, Oregon tattoo artist and owner of TigerLily Tattoo and Design Works, brought a lawsuit in the U.S. District Court for the District of Oregon against sports retail giant Nike, Inc., NBA star Rasheed Wallace, and advertising agency Weiden + Kennedy, alleging copyright infringement. (69) In 1998, Reed, with Wallace’s input, designed a tattoo (the “Wallace tattoo”) and applied it to Wallace’s upper arm. (70) Before tattooing Wallace, Reed made several sketches and drawings that would become the basis for the tattoo. (71) After the tattoo had been completed, Reed admitted to observing the Wallace tattoo on Wallace during televised NBA games, but admitted that he expected this public display of the Wallace tattoo and that such exposure would benefit his business. (72)
 
In (2004), Reed became aware of a Nike television commercial, created by Weiden + Kennedy, featuring Wallace. (73) The commercial included a full-screen depiction of the Wallace tattoo, a computerized recreation of the tattoo, and a voiceover by Wallace “describing the tattoo and its meaning.” (74) Upon discovering the commercial, Reed registered the pencil drawing that was the basis for the Wallace tattoo with the Copyright Office and then brought his claim for infringement. (75)
 
Reed’s complaint alleged that he was “the owner of all right, tide and interest to the original artwork from which the tattoo on Mr. Wallace’s arm was created.” (76) In his first claim for relief, Reed alleged copyright infringement against both Nike and Weiden + Kennedy for “cop[ying],” “reproduc[ing],” “distribui[ing],” “adapting],” and “publicly display[ing]” the Wallace tattoo without his permission. (77) It should be noted that while Reed’s complaint alleges infringement of the “Wallace tattoo,” the alleged infringement was actually of his initial drawings, not the tattoo on Wallace’s arm.
 
Reed’s second and third claims for relief were alleged against Wallace individually. In this second claim, Reed alleged contributory infringement against Wallace for causing Nike and Weiden + Kennedy to believe that Wallace was the exclusive owner of the copyrights in the Wallace tattoo and to subsequently infringe Reed’s exclusive rights. (78) In his third claim for relief, Reed alleged, in the alternative, that, if Wallace was a joint author and therefore a co-owner of the copyright in the Wallace tattoo, Reed was entitled to an accounting for profits obtained by Wallace for the use of the Wallace tattoo in the Nike commercial. (79)
 
Reed requested damages from Nike, Weiden + Kennedy, and Wallace and injunctive relief against Nike and Weiden + Kennedy. (80) However, the case was ultimately settled before going to trial. (81)
 
B. Whitmill v. Warner Bros.: The Mike Tyson Tattoo
 
On April 25, 2011, S. Victor Whitmill, a tattoo artist formerly from Las Vegas, Nevada, brought suit in the U.S. District Court for the Eastern District of Missouri against Warner Brothers for copyright infringement. (82) In 2003, Whitmill tattooed an “original and distinctive” design on the left side of Mike Tyson’s face (the “Tyson tattoo”). (83) Unlike the tattoos at issue in Reed and Escobedo, which were based upon preliminary sketches and drawings, Whitmill never made any drawings prior to tattooing Tyson’s face. (84) Several years after tattooing Tyson, Whitmill discovered that Warner Brothers planned to release the motion picture The Hangover 2, in which the character portrayed by actor Ed Helms has a face tattoo identical to the Tyson tattoo. (85) Warner Brothers had also released movie posters and other advertisements depicting Helms’s character with the allegedly infringing tattoo. (86)
 
Whitmill alleged that he created the Tyson tattoo contemporaneously with tattooing it in Tyson’s face, that the Tyson tattoo was subject to copyright protection once applied to Tyson, and that he was the owner of the copyright. (87) Furthermore, prior to Whitmill creating the Tyson tattoo, Tyson signed a release stating “all artwork, sketches and drawings related to [his] tattoo and any photographs of [his] tattoo are property of Paradox-Studio of Dermagraphics,” Paradox-Studio of Dermagraphics being the name under which Whitmill was doing business at the time. (88) Whitmill registered the copyright in the Tyson tattoo with the Copyright Office by submitting photographs of the tattoo in 2011 after learning about The Hangover 2 and immediately prior to bringing his lawsuit. (89)
 
Whitmill’s complaint alleged that Warner Brothers infringed his copyright by “copying,” “distributing],” and “publicly display[ing]” the Tyson tattoo in promotional materials, as well as by creating a derivative work without his permission. (90) Whitmill requested injunctive relief seeking that Warner Brothers be enjoined from continued infringement, (91) as well as monetary damages. (92) Although the case settled before reaching trial, (93) Judge Catherine Perry, when ruling on Whitmill’s motion for preliminary injunction, indicated that she believed Whitmill had “a strong likelihood of prevailing on the merits for copyright infringement” (94):
 
Of course tattoos can be copyrighted. I don’t think there is any reasonable dispute about that. They are not copyrighting Mr. Tyson’s face, or restricting Mr. Tyson’s use of his own face … or saying that someone who has a tattoo can’t remove the tattoo or change it, but the tattoo itself and the design itself can be copyrighted, and I think it’s entirely consistent with the copyright law …, (95)
 
C. Escobedo v. THQ Inc.: The Condit Tattoo
 
On November 16, 2012, Christopher Escobedo, a Phoenix, Arizona tattoo artist, filed a lawsuit in the U.S. District Court for the District of Arizona against video game developer THQ, Inc. alleging copyright infringement. (96) In 2009, Escobedo tattooed a large depiction of a lion (the “Condit tattoo”) on the ribcage of Carlos Condit, a popular mixed martial artist. (97) Prior to tattooing Condit, Escobedo first sketched the Condit tattoo on paper, (98) which became the basis for the subsequent tattoo. On February 24, 2012, Escobedo registered his sketch of the Condit tattoo with the Copyright Office. [99]  
In February 2012, THQ released the video game UFC Undisputed 3, for both the Xbox360 and PlayStation 3 gaming systems, as a follow-up to its 2010 release of UFC Undisputed 2010. (100) Both video games included a computer-generated character representing Condit that could be selected for use during the gameplay–the Condit character featured a reproduction of the Condit tattoo. (101) When the Condit character was selected for use by the game-player, the character, with the Condit tattoo, was displayed prominently in different features of the gameplay. (102)
 
In his complaint, Escobedo alleged he had granted Condit an implied license to display the Condit tattoo on his body (103) but that he did not authorize any reproduction of the tattoo. (104) Escobedo alleged copyright infringement (105) against THQ for violating his “reproduction,” (106) “derivative works,” (107) “distribution,” (108) and “display” (109) rights by including the Condit tattoo on the Condit video game character.
 
Escobedo requested monetary damages consisting of an accounting by THQ of its profits earned by the alleged infringement. (110) However, the case was dismissed by the district court, with prejudice, for failure to prosecute. (111)
 
III. COPYRIGHT PROTECTION AND TATTOOS
 
To warrant copyright protection, a work must satisfy the “fixation” and “originality” requirements of [section] 102(a). Undertaking a basic application of the statute, it seems that tattoos would satisfy these requirements. (112) As dis- cussed previously in Secdon II.C, at a hearing to rule on Victor Whitmill’s motion for a preliminary injunction, Judge Catherine Perry, appraising Whitmill’s possibility of success on the merits stated, ” [o]f course tattoos can be copyrighted. I don’t think there is any reasonable dispute about that.” (113) Judge Perry stated further that, “[t]hey are not copyrighting Mr. Tyson’s face, or restricting Mr. Tyson’s use of his own face … or saying that someone who has a tattoo can’t remove the tattoo or change it.” (114) It is true that granting a copyright for the Tyson tattoo is not copyrighting Tyson’s face; however, it is not so obvious that there would be no restriction on Tyson’s use of his face or his ability to alter the tattoo. In fact, granting a copyright in the Tyson tattoo could have the opposite effect.
 
A tattoo is widely recognized as permanent. Unless a person decides to have his or her tattoo surgically removed, the tattoo will remain in the individual’s skin for the duration of his or her life. (115) It could be argued that a human being will eventually die, however, the span of a human life should satisfy the requirement of fixation for “more than [a] transitory duration.” (116)
 
To satisfy the originality requirement, a tattoo must be independently created and must exhibit more than a de minimis amount of creativity. Undoubtedly, in many circumstances, a tattoo will consist of a tattoo artist’s independently created expression that possesses the necessary level of creativity. On the opposite end of the spectrum, for example when a tattoo consists of words or common geometric shapes such as a heart or clover, it is likely that the work would not have been independently created by the tattoo artist and would not meet the minimum requirements for creative expression. (117)
 
Although the above application of the Copyright Act seems to indicate that, in general, tattoos could be copyrightable subject matter, the resolution of the issue should not be as obvious as Judge Perry would make it seem. First, it is important to recognize that there is a distinction between a tattoo and the drawings, sketches, or other works of art upon which a tattoo is based. Section A of this Part will discuss this distinction. Second, granting copyright protection to tattoos will have far more significant consequences than granting protection to most other works of art. These negative policy implications will be discussed in Section B of this Part. Finally, Section C will make the argument that the copyright statute could be interpreted so as to not include tattoos within the purview of the Copyright Act, therefore avoiding the negative implications discussed.
 
A. The Tattoo/Drawing Distinction
 
When a person meets with a tattoo artist to be tattooed, the tattoo artist may use several different methods to develop the concept for the tattoo. In some cases, the client will bring in photographs or drawings that the client wants reproduced in a tattoo. (118) In other instances, the tattoo artist’s client will choose a design from the tattoo artist’s existing “flash” collection. (119) For a more custom or unique tattoo, a client might present the tattoo artist with his or her ideas for a tattoo then work with the tattoo artist to develop a preliminary drawing which will become the basis for the subsequent tattoo. (120) In contrast, for those more trusting clients, a tattoo artist may choose to create a tattoo contemporaneously with the tattooing of the client, without basing the tattoo on any prior work. (121) As will be discussed, the distinction between a tattoo and the preliminary works upon which a tattoo is based is important.
 
Section 102(a) extends federal copyright protection to “original work[s] of authorship fixed in any tangible medium of expression.” (122) When a tattoo artist creates a drawing or sketch upon which a subsequent tattoo is based, assuming the drawing satisfies the [section] 102(a) “fixation” and “originality” requirements, the drawing or sketch will likely be subject to copyright protection. (123) The fact that the drawing or sketch is later reproduced in a tattoo should not factor into the analysis–the drawings should not be considered to be different than any other artistic drawing.
 
In both Reed and Escobedo, the tattoo artists each based their tattoos upon drawings and sketches they created prior to applying the tattoos to their respective clients. (124) Assuming for the purposes of this Note that these preliminary drawings satisfied [section] 102(a), Reed and Escobedo likely owned the copyrights in their drawings. In fact, both tattoo artists, prior to initiating their respective lawsuits, registered their drawings with the Copyright Office. (125) While the artists’ lawsuits alleged infringement of their tattoos, the alleged infringement is more properly characterized as an infringement of their drawings, not the completed tattoo. Therefore, when Reed and Escobedo allege the ownership of a copyright and infringement of their rights, it is not a copyright in the tattoo, but a copyright in the preliminary drawings.
 
The question of copyrightability in a case like Whitmill is complicated by the fact that there were no copyrightable preliminary drawings upon which the Tyson tattoo was subsequently based. (126) Therefore, when Whitmill registered his work with the Copyright Office, his registration was for the tattoo fixed on Mike Tyson’s face, not a prior drawing or sketch fixed on a piece of paper. (127)
 
B. Implications of Copyrightable Tattoos
 
The distinction highlighted in the above Section will have an impact on the analysis of the implications of granting copyright protection to tattoos. The analysis of authorship and extension of rights provided by the Copyright Act and VARA will differ depending upon whether the work in question is a preliminary drawing or a tattoo. Analysis with respect to preliminary drawings should not differ markedly from analysis of any other drawing under the Copyright Act. (128) In comparison, analysis as to tattoos is more complicated and may indicate that, as a policy matter, tattoos should not be granted copyright protection. The focus of this Section is on highlighting several of the implications of granting copyright protection to tattoos as opposed to preliminary drawings.
 
1. Tattoo Artist Control over the Client
 
Assuming that a court determines tattoos to be copyrightable, it becomes necessary to determine the author of the tattoo, which will likely be the tattoo artist, the tattoo recipient, or possibly both. As previously discussed, there are three possible forms of authorship that must be considered: “sole authorship,” “joint authorship,” and “work made for hire.” (129)
 
To qualify as a “work made for hire,” the tattoo artist would have to qualify as either an employee of his or her client acting within the scope of his or her employment or as an independent contractor. (130) First, since a tattoo artist is not likely to be found to be the employee of his or her client under the common law agency standard promulgated by Community for Creative Non-Violence v. Reid, (131) the first possibility of qualifying under the doctrine does not apply. Second, for a tattoo artist to qualify as an independent contractor under the second option of the “work made for hire” doctrine, the tattoo must be for use as a contribution to a collective work and the tattoo artist and client must agree that the tattoo is a “work made for hire.” (132) This prong will likely not be satisfied since a tattoo is generally not intended to be incorporated into a collective work. (133)
 
Since a tattoo is most likely not a “work made for hire,” it must be either a work of “sole authorship” or a “joint work.” A tattoo is unlikely to be a “joint work” since the client probably could not be found to have made an independently copyrightable contribution to the creation of the tattoo. It is possible that the tattoo artist and the client could both intend to be coauthors of the tattoo; however, it is more likely that the tattoo artist would view himself or herself as the sole author of the work. Therefore, since a tattoo is most likely not a “work made for hire” or a “joint work,” if it is copyrightable, it must be a work of “sole authorship.” If a tattoo is a work of “sole authorship,” the sole author would be the tattoo artist. In that case, the tattoo artist would be vested with “the exclusive rights to do and to authorize” the exercise of the rights granted in [section] 106. (134) As a policy matter, this raises significant public policy concerns since the grant of copyright protection in a tattoo could enable the tattoo artist to control not only his or her artwork, but the person on whom it is “fixed.”
 
To realize the breadth of this problem, it is helpful to consider a hypothetical example. Since the facts in Whitmill involve the creation of a tattoo contemporaneously with the tattooing, (135) that case will be utilized here. The rights that would be granted to Whitmill if he were to be granted copyright protection in the Tyson tattoo would include the sole right to “reproduce” the tattoo, “prepare derivative works” based on the tattoo, “distribute copies” of the tattoo, and “display the [tattoo] publicly.” (136) Allowing Whitmill the right, for example, to do or authorize the public display of the tattoo highlights the public policy problem.
 
The term “to display” is defined in the Copyright Act as “to show a copy of [a work], either directly or by means of a film, slide, television image, or any other device or process or, in the case of a motion picture or other audiovisual work, to show individual images nonsequentially.” (137) To display a work “publicly” under the Copyright Act means to “display it at a place open to the public or at any place where a substantial number of persons outside of a normal circle of a family and its social acquaintances is gathered.” (138) The work can also be displayed publically by transmitting or communicating a display of a work, such as by television or film, to the public. (139)
 
The problem that would arise if Whitmill were to be granted copyright protection, and thus the display rights, in the Tyson tattoo, would be that he could control Tyson’s appearances in public, including Tyson’s personal appearances, television appearances, appearances in film, and appearances in print media. (140) Since Whitmill would have the “exclusive right[ ] … to authorize” (141) the public display of the Tyson tattoo, Whitmill would also possess the right to exclude and could effectively force Tyson to forego public appearances or, when appearing in public, to cover the tattoo. If Tyson were to choose to infringe Whitmill’s copyright by publicly displaying his tattoo, he could be subject to monetary damages for any actual damages suffered by Whitmill, as well as to an accounting for the profits earned by such infringement. (142) Furthermore, should Tyson appear on television or in a motion picture, the television network or film studio could be subjected to infringement liability.

Since Tyson is a celebrity/athlete who likely derives significant income from his appearances in person, on television, and in films, forcing him to forego these public appearances could have a significant impact on his ability to earn an income. A similar consequence is likely if Tyson were forced to cover the tattoo, especially since the tattoo is located prominently on his face. Requiring Tyson to cover his face could have a serious impact on his earning potential, not to mention his ability to function normally in everyday life. Additionally, if television networks or film studios face the prospect of copyright infringement liability, Tyson might find it difficult to secure work in the first place. While these issues might be of greater concern to celebrities and other public figures, it is not inconceivable that non-celebrities might encounter similar problems should tattoos be granted copyright protection. Until Congress recognizes a celebrity exception to the copyright law, this distinction should be irrelevant.
 
2. Tattoo Artist’s Moral Rights Versus Client’s Autonomy
 
As discussed in Section I.C, the VARA provides protections for an author’s moral rights, including the right of attribution and the right to integrity. (143) VARA grants the author the right to “prevent any intentional distortion, mutilation, or other modification of that work which would be prejudicial to [the author’s] honor or reputation” as well as “any destruction of a work of recognized stature.” (144) Essentially, VARA prohibits changing or destroying a copyrighted work of visual art.
 
If tattoos are granted copyright protection, the tattoo artist would be granted the rights conferred by VARA. VARA would prohibit the recipient of the tattoo from altering, modifying, or destroying his or her tattoo, unless granted permission by the tattoo artist. This would include prohibiting laser removal of a regretted tattoo, the covering of a tattoo with a second tattoo, or even adding to a tattoo. In each of these cases, the court could enjoin the tattoo recipient from taking any of these actions and make the tattoo recipient pay the tattoo artist damages for any alteration of the tattoo.
 
As was also demonstrated in subsection III.B.1, if tattoos were found to be copyrightable, the rights conferred by VARA would carry significant human rights implications related to the ability of the tattoo artist to control a client’s freedom to make choices with respect to his or her body. Granting one person such controlling authority over another person by virtue of the copyright law would be in direct conflict with the Thirteenth Amendment’s express grant of individual freedom and autonomy. (145) Furthermore, it most certainly would be beyond the intended scope of the Copyright Act or VARA. The conflict that would arise between VARA and basic human rights should be sufficient to warrant extreme caution when considering the copyright-ability of tattoos and could be the basis for concluding that tattoos should not be granted copyright protection.
 
C. Are Tattoos Copies?
 
What if a “copy” of the Tyson tattoo never existed? “Copies” are defined in [section] 101 as “material objects … in which a work is fixed by any method now known or later developed, and from which the work can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device.” (146) To satisfy the “fixation” requirement for copyrightable subject matter, a work must be “embodied] in a copy,” (147) therefore, if there is no “copy” of a work the fixation requirement cannot be satisfied and the work is not copyrightable subject matter under the Copyright Act.
 
By defining “copies” as “material objects,” Congress likely did not intend to include human skin within the category of mediums in which a copyrightable work could be embodied. In ordinary, everyday usage of the word “objects,” most people would not include human beings or their skin within the definition. Rather, an object is generally understood, consistent with its dictionary definition, as being “a thing that you can see and touch and that is not alive.” (148) This understanding is supported by the legislative history of the Copyright Act, which does not make any reference to tattoos or to a human body being utilized as a “copy” for the purpose of obtaining a copyright. (149) Examination of the copyright statute as a whole also indicates that inclusion of the human body as a “copy” would require absurd interpretation of other provisions.
 
For example, [section] 407 requires that the owner of a copyrighted work deposit, with the Library of Congress, two copies of the work. (150) It should be fairly obvious that copies of a tattoo could be made on paper, which could then easily satisfy this deposit requirement. But if the human body is included with the purview of things that could be “copies” under the Copyright Act, the human body would be included as a “copy” that could be placed on file with the Library of Congress. Of course, placing a human body on file with the Library of Congress would not be possible. What this highlights is that inclusion of the human body as a “copy” would lead to strange results, indicating Congress likely never contemplated nor intended for the human body to be a “copy” for the purpose of the Copyright Act.
 
Another example that indicates Congress likely did not intend to include the human body within the definition of “copies” can be found in relation to the first sale doctrine. Ownership of the material object in which a copyrighted work is fixed does not confer any of the exclusive rights granted by the Copyright Act. (151) However, the first sale doctrine, which provides that “the owner of a particular copy … lawfully made under this title, or any person authorized by such owner, is entitled, without the authority of the copyright owner, to sell or otherwise dispose of the possession of that copy,” (152) provides an exception to this rule. In addition to the authority “to sell or otherwise dispose of’ the copy of a work, the first sale doctrine also provides that, ” [notwithstanding the provisions of section 106(5), the owner of a particular copy lawfully made under this title, or any person authorized by such owner, is entitled … to display that copy publicly … to viewers present at the place where the copy is located.” (153) Though it would seem that the exceptions granted by the first sale doctrine could be employed to provide a remedy for the policy problems discussed in Section III.B, (154) deeper analysis demonstrates not only that application of the doctrine to tattoos would be also strained, but also provides further support for the argument that tattoos do not qualify as “copies” under the Copyright Act. If this is true, tattoos would not be subject to copyright protection.
 
Returning to the Whitmill example (155) and assuming, arguendo, that Mike Tyson’s face qualifies as a “copy,” Tyson’s ownership of his face would not confer upon him any of Whitmill’s exclusive rights in the Tyson tattoo. Before Tyson’s face was tattooed by Whitmill, Tyson was undoubtedly the owner of his face. By tattooing Tyson, Whitmill certainly did not obtain ownership of Tyson’s face. (156) Therefore, since Whitmill never held title to the “copy” of the Tyson tattoo, he could not sell or otherwise convey title of that copy to Tyson as required for the first sale doctrine to apply. (157) This difficulty in applying the first sale doctrine–a difficulty which is caused by the fact that a tattoo is fixed on a human being and not on a transferable, inanimate object–supports the conclusion that the first sale doctrine, and the Copyright Act in general, did not contemplate granting protection to tattoos.
 
Another impediment to the application of the first sale doctrine in this hypothetical is the limitation of the doctrine found in [section] 109(d) which provides that “[t] he privileges prescribed by subsection[] … (c) do not, unless authorized by the copyright owner, extend to any person who has acquired possession of the copy … by rental, lease, loan, or otherwise, without acquiring ownership of it.” (158) Once again, application of the first sale doctrine to tattoos is strained because tattoos, unlike a painting, sculpture, or novel, are created on human flesh as opposed to an item of personal property. As discussed above, Tyson likely never parted with the title to his skin before, during, or after being tattooed by Whitmill. However, it could be argued that by allowing himself to be tattooed by Whitmill, Tyson granted some interest in his skin to Whitmill. This may seem extreme, but what if there was an agreement?
 
In Whitmill, Tyson signed a release acknowledging “that all artwork, sketches and drawings related to [his] tattoo and any photographs of [his] tattoo are property of [Whitmill].” (159) It is not clear how a court would construe this agreement. A court may find that the clause is only meant to reserve the intellectual property rights in Whitmill’s works to Whitmill. However, use of the terms artwork, sketches, and drawings seems to include the physical embodiment of Whitmill’s works, which in this case would also include Tyson’s face. While such a contract would likely be held invalid under the Thirteenth Amendment, if copyright protection were to be granted to tattoos, it is not impossible that a court would have to address similar issues.
 
Since, under the foregoing interpretation of the Copyright Act, the human body is not an “object,” it would not qualify as a “copy” in which a work can be fixed. When a tattoo is created contemporaneously with its application to human skin, the fixation requirement cannot be satisfied because, per the requirements of the Copyright Act, there is no resultant copy of the work. Therefore, a tattoo cannot be the subject of copyright protection. This interpretation of the statute will solve most of the aforementioned copyright issues arising in the realm of tattoos with respect to tattoos created contemporaneously to their application to a person’s skin and will impact the infringement analysis for tattoos based upon a tattoo artist’s drawings.
 
In the case of tattoos created as they are applied to a person’s skin, since the resultant tattoo would not be embodied in a “copy,” there would be no copyright protection available for the tattoo. Therefore, the tattoo artist would have no intellectual property rights in the tattoo that could restrict the client’s or a third party’s use of the tattoo. Furthermore, since no copyright protection would be available in the first instance, the client would also have no intellectual property rights in the tattoo he or she received. Any person would be free to utilize the tattoo in ways that, if the tattoo were copyrightable, would infringe upon the copyright owner’s exclusive [section] 106 rights.
 
One possible negative consequence of this interpretation is that tattoo artists who create tattoos based upon other copyright protected works will be protected from liability for infringement because the resultant tattoo will not qualify as a “copy” as required for copyright infringement. (160) Although creating a sort of “safe harbor” for tattoo artists could be a potential concern for copyright owners, the difficulty of identifying persons with tattoos depicting copyrighted work and the costs of initiating a lawsuit against such persons would likely outweigh the benefits of taking such action. Furthermore, if a lawsuit were brought alleging that a person’s tattoo infringes upon a copyrighted work, concerns, similar to those that were discussed in this Note, (161) would arise regarding the courts’ ability to fashion an appropriate remedy. (162) Finding that tattoos are not “copies,” and therefore not copyrightable subject matter, would also address these problems.
 
For tattoos that are based upon a preliminary drawing, the analysis is not as straightforward and infringement liability might not be completely precluded. A tattoo artist may own the copyright in his or her preliminary drawings; (163) however, the replication of the drawing in tattoo form will not create a “copy” of the preliminary drawing within the meaning of the statute since the replication is not embodied in a “material object.” Therefore, the tattoo artist will have no intellectual property rights in the tattoo and no right to control the subsequent display of the tattoo. Either the client or third party could display the tattoo without violating the Copyright Act, since violation of the [section] 106 display right requires showing a “copy” of a protected work. (164) As to the other [section] 106 rights, however, holding that a tattoo is not a “copy” may not foreclose the possibility of infringing upon the tattoo artist’s copyright in his or her preliminary drawing. If the recipient of a tattoo or a third party were to reproduce the depiction embodied in a tattoo that was created contemporaneously with its application in the recipient’s skin there would be no infringement. However, when the tattoo is based upon a preliminary drawing, the tattoo artist may possess the copyright in the preliminary drawing and it may be possible that the reproduction could be found to infringe upon that preliminary drawing. The same infringement analysis would be applicable with respect to the other [section] 106 rights. (165) Therefore, determining whether a tattoo was first conceived of while being applied to a person’s skin or whether it was based upon a preliminary drawing or other copyright protected work will be critical for the infringement analysis.
 
In sum, holding a tattoo not to be a “copy,” and therefore not copyrightable subject matter under the Copyright Act, will eliminate the possibility of infringement with respect to tattoos created contemporaneously with their application in human skin. In cases involving a tattoo based upon a tattoo artist’s copyright-protected preliminary drawing, the possibility of infringement will not be eliminated, but rather, the scope of possible conduct that will result in infringement will be narrowed.
 
CONCLUSION
 
One of the purposes of the Copyright Act is to provide incentives for authors to create new works by awarding them a limited monopoly over their works so as to “promote … Progress.” (166) This goal of copyright law certainly seems applicable to tattoo artists; however, extending copyright protection to tattoo artists may not provide much of an additional incentive for the creation of tattoos. (167) In light of the fact that tattoos and tattooing are gaining increased popularity in American society, it is not altogether clear that copyright protection is necessary to “promote … Progress” in tattoo works.
 
Regardless, the prospect of extending copyright protection to tattoos carries with it serious policy implications that are not present with other works of art–most significantly the potential for incursion upon individuals’ basic human rights–that likely trump the benefits gained by granting tattoo artists copyright protection. When a future court is required to determine whether tattoos are copyrightable subject matter, the proper course should be to deny copyright protection. Rather than attempting to determine whether tattoos meet the [section] 102 requirements for copyrightability or engaging in equitable balancing to determine whether granting copyright protection to tattoos would violate public policy, courts should look to the definition of “copies” provided by the Copyright Act. That definition should be interpreted as requiring fixation in an inanimate object and not to include the human body. By interpreting the statute in this manner, the court will be able to decide that tattoos are not copyrightable subject matter protected by the Copyright Act.
 
Michael C. Minahan, J.D. Candidate, University of Notre Dame Law School, 2016; B.S. in Political Science, Santa Clara University, 2007. I thank Professor Stephen Yelderman for guiding and encouraging me in the writing of this Note. I also thank my family and my wife Vanessa for their never-ending support. Finally, I thank the members of Volume 90 of the Notre Dame Law Review for their tireless work and dedication. All errors are my own.

(1) David Shields, Body Politic: The Great American Sports Machine 189 (2004).

(2) Aaron Deter-Wolf & Carol Diaz-Granados, Drawing with Great Needles xi-xii (2013) (“A Chinchorro mummy from Chile dated to 6000 BC exhibits a ‘mustache’ tattoo on its upper lip, while still other instances of … tattoos have been documented on ancient fleshed remains from Siberia, western China, Egypt, Greenland, Alaska, and throughout the Andes.”).

(3) Clinton R. Sanders, Customizing the Body: The Art and Culture of Tattooing 14 (1989) (“Cook introduced the Tahitian word ‘ta-tu’ meaning ‘to strike’ or ‘to mark’ and soon ‘tattoo’ became the common term.”).

(4) Id. at 16 (“The first professional tattooist to practice in the United States was Martin Hildebrand…. By the 1890s Hildebrand had opened an atelier on Oak Street in New York.”).

(5) Id. (noting how the development of the electric tattoo machine “increased the rate at which tattooing diffused in [American] society”); see U.S. Patent No. 464,801 (filed Jul. 16, 1891). Charlie Wagner improved upon O’Reilly’s tattoo machine design in 1904. See U.S. Patent No. 768,413 (filed Apr. 19, 1904). Variations of the electric tattoo machine are still utilized by tattoo artists in the present day.

(6) See Caitlin Johnson, Tattooed America: The Rise of Skin Art, CBS News (Oct. 29, 2006, 11:24 AM), http://www.cbsnews.eom/news/tattooed-america-the-rise-of-skin-art/2/.

(7) See, e.g., Perseverance: Japanese Tattoo Tradition in a Modern World, Japanese Am. Nat’l Museum, http://www.janm.org/exhibits/perseverance/ (last visited Mar. 9, 2015); Tattoo: Flash Art of Amund Dietzel, Milwaukee Art Museum, http://mam.org/exhibitions/details/ tattoo.php (last visited Mar. 9, 2015).

(8) Sec Johnson, supra note 6. See generally Ink Master, Spike, http://www.spike.com/ shows/ink-master (last visited Mar. 9, 2015); Miami Ink, TLC, http://www.dc.com/tvshows/miami-ink (last visited Mar. 9, 2015).

(9) One in Five U.S. Adults Now Has a Tattoo, Harris Interactive (Feb. 23, 2012), http://www.harrisinteractive.com/NewsRoom/HarrisPolls/tabid/447/mid/1508/articleId/970/ cd/ReadCustom%20Default/Default.aspx. This percentage has increased by seven percent since 2008. Id.

(10) Id.; see also Millennial: A Portrait of Generation Next, Pew Research Ctr. (Feb. 2010), http://www.pewsocialtrends.org/files/2010/10/millennials-confident-connected-open-tochange.pdf (indicating that thirty-eight percent of Millennial have at least one tattoo, while thirty-two percent of Generation Xers and fifteen percent of Baby Boomers respectively have at least one tattoo).

(11) Sarah Turk, IBISWorld Industrial Report OD4404, Tattoo Artists in the US 4 May 2014, at 4 (“[I]n the five years to 2014, [tattoo] industry revenue is expected to grow at an annualized rate of 2.9% to $3.4 billion, including a 1.6% growth in 2014.”).

(12) See Matthew Beasley, Note, Who Owns Your Skin: Intellectual Property Law and Norms among Tattoo Artists, 85 S. Cal. L. Rev. 1137, 1164-66 (2012).

(13) Complaint, Reed v. Nike, Inc., (No. CV-05-198) (D. Or. dismissed Oct. 19, 2005), 2005 WL 1182840.

(14) Verified Complaint for Injunctive and Other Relief, Whitmill v. Warner Bros. Entm’t, Inc., No. 4:ll-CV-752 (E.D. Mo. dismissed June 22, 2011).

(15) Complaint, Escobedo v. THQ Inc., (No. 2:12–CV–02470–JAT) (D. Ariz. dismissed Dec. 11, 2013), 2012 WTL 5815742.

(16) For a discussion of the intellectual property issues surrounding “flash art” and the copying of other visual art by tattoo artists, see Aaron Perzanowski, Tattoos &? IP Norms, 98 Minn. L. Rev. 511, 557-67 (2013).

(17) 17 U.S.C. [section][section] 101-1309 (2012).

(18) U.S. Const, art. I, [section] 8, cl. 8 (“The Congress shall have Power… To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.”).

(19) 17 U.S.C. [section] 102(a).

(20) Id. [section] 102(a)(l)-(8). The works of authorship include “literary works”; “musical works”; “dramatic works”; “pantomimes and choreographic works”; “pictorial, graphic, and sculptural works”; “motion pictures and other audiovisual works”; “sound recordings”; and “architectural works.” Id.

(21) Id. [section] 102(a). Under [section] 102(b), there is no copyright protection for “any idea, procedure, process, system, method of operation, concept, principle, or discovery.” Section 102(b) establishes a third requirement for copyrightability, the restriction of copyright protection to expression and not ideas; however, it is unlikely to be implicated when the work in question is a tattoo. Therefore, this discussion will be focused on the requirements of [section] 102(a).

(22) Id. Fixation in a tangible medium of expression occurs when “a work is … embodi[ed] in a copy or phonorecord [when], by or under the authority of the author, [it] is sufficiendy permanent or stable to permit it to be perceived, reproduced, or otherwise communicated for a period of more than a transitory duration.” Id. [section] 101.

(23) H.R. Rep. No. 94-1476, at 52-53 (1976), reprinted in 1976 U.S.C.C.A.N. 5659, 5665-66, 1976 WL 14045 (“[T]he concept of fixation is important since it … determines whether the provisions of the statute apply to a work….”).

(24) Id.; see, e.g., MAI Sys. Corp. v. Peak Computer, Inc., 991 F.2d 511, 519 (9th Cir. 1993) (holding a copy of computer software created in RAM to be fixed under the Copyright Act).

(25) 17 U.S.C. [section] 101.

(26) See MAI Sys., 991 F.2d at 518-19 (holding that the creation of a copy of computer software in RAM for the purposes of conducting maintenance on the computer is of sufficient duration even though the copy is deleted once the computer is shut off); see also Cartoon Network LP v. CSC Holdings, Inc., 536 F.3d 121, 129 (2d Cir. 2008) (holding that the reproduction of copyrighted work in a network buffer for a “fleeting 1.2 seconds” did not satisfy the fixation requirement).

(27) 17 U.S.C. [section] 102(a).

(28) Id.

(29) U.S. Const, art. I, [section] 8, cl. 8.

(30) H.R. Rep. No. 94-1476, at 51 (1976), reprinted in 1976 U.S.C.C.A.N. 5659, 5664, 1976 WL 14045.

(31) Id. (“The phrase ‘original works of authorship,’ which is purposely left undefined, is intended to incorporate without change the standard of originality established by the courts under the [Copyright Act of 1909, as amended].”).

(32) 499 U.S. 340 (1991).

(33) Id. at 345.

(34) Id. (internal quotation marks omitted).

(35) Bleistein v. Donaldson Lithographing Co., 188 U.S. 239, 251 (1903) (“It would be a dangerous undertaking for persons trained only to the law to constitute themselves final judges of the worth of pictorial illustrations.”).

(36) Alfred Bell & Co. v. Catalda Fine Arts, Inc., 191 F.2d 99, 102 (2d Cir. 1951) (footnote omitted) (quoting Burrow-Giles Lithographic Co. v. Sarony, 111 U.S. 53, 57-58 (1884)).

(37) Id. (quoting Gerlach-Barklow Co. v. Morris & Bendien, 23 F.2d 159, 161 (2d Cir. 1927)).

(38) See 37 C.F.R. [section] 202.1 (2012) (“The following are examples of works not subject to copyright … (a) Words and short phrases such as names, titles, and slogans; familiar symbols or designs; mere variations of typographic ornamentation, lettering or coloring….”).

(39) 17 U.S.C. [section] 201(a) (2012). The term “author” has never been statutorily defined.

(40) Sarony, 111 U.S. at 58.

(41) See id.; see, e.g., Ashton-Tate Corp. v. Ross, 916 F.2d 516, 522-23 (9th Cir. 1990) (holding a software developer was not a joint author of a computer spreadsheet program because he did not make an independently copyrightable contribution); Lindsay v. The Wrecked and Abandoned Vessel R.M.S. Titanic, No. 97 Civ. 9248(HB), 1999 WL 816163, at *4 (S.D.N.Y. 1999) (holding that a documentary filmmaker stated a claim for infringement of his copyright in the documentary footage even though the plaintiff did not actually conduct the photography).

(42) 17 U.S.C. [section] 101; see, e.g., Childress v. Taylor, 945 F.2d 500, 509 (2d Cir. 1991) (holding that lack of intent by both parties to be joint authors precluded a finding of joint authorship).

(43) See Aalmuhammed v. Lee, 202 F.3d 1227, 1231 (9th Cir. 2000); Thomson v. Larson, 147 F.3d 195, 200 (2d Cir. 1998); Erickson v. Trinity Theatre, Inc., 13 F.3d 1061, 1069 (7th Cir. 1994).

(44) See, e.g., Thomson, 147 F.3d at 202-05.

(45) See, e.g, Aalmuhammed, 202 F.3d at 1234-35.

(46) 17 U.S.C. [section] 101 (“A ‘work made for hire’ is–(1) a work prepared by an employee within the scope of his or her employment; or (2) a work specially ordered or commissioned for use as a contribution to a collective work … if the parties expressly agree in a written instrument signed by them that the work shall be considered a work made for hire.”).

(47) Id.

(48) 490 U.S. 730 (1989).

(49) Id. at 751-52 (explaining that factors include “the hiring party’s right to control the manner and means by which the product is accomplished … the skill required; the source of the instrumentalities and tools; the location of the work; the duration of the relationship between the parties; whether the hiring party has the right to assign additional projects to the hired party; the extent of the hired party’s discretion over when and how long to work; the method of payment; the hired party’s role in hiring and paying assistants; whether the work is part of the regular business of the hiring party; whether the hiring party is in business; the provision of employee benefits; and the tax treatment of the hired party” (footnotes omitted)).

(50) See, e.g., Aymes v. Bonelli, 980 F.2d 857, 862-63 (2d Cir. 1992).

(51) 17 U.S.C. [section] 101. Other categories include motion picture or other audiovisual work, translation, instructional text, test, answer material for a test, and an adas. Id.

(52) Id.

(53) Id. [section] 106(1)-(3), (5).

(54) Id. [section] 106.

(55) Id. [section] 201(d)(1). Under [section] 201(d)(2) any of die individual exclusive rights may be transferred and owned independently of the others.

(56) Id. [section] 106A.

(57) Id.

(58) Id. [section] 101. The [section] 101 definition of work of visual art is rather lengthy, providing certain protections for photographic images and sculpture, as well as providing a listing of works that do not qualify as works of visual art. The quoted excerpt is the part of the definition relevant to this Note.

(59) Id. [section] 106A(a)(1)-(2).

(60) See Christine Lesicko, Tattoos as Visual Art: How Body Art Fits into the Visual Artists Rights Act, 53 IDEA 39, 51 (2013).

(61) 17 U.S.C. [section] 106A(a) (3) (A)-(B). Whether a work is of “recognized stature” may be determined by a two-part test which asks whether the visual art in question is viewed as meritorious and whether the visual art is recognized by art experts, members of the art community, or some cross-section of society. See Martin v. City of Indianapolis, 192 F.3d 608, 612 (7th Cir. 1999) (quoting Carter v. Helmsley-Spear, Inc., 861 F. Supp. 303, 325 (S.D.N.Y. 1994)).

(62) 17 U.S.C. [section] 106A(c)(l).

(63) Id. [section] 106A(c) (2).

(64) Id. [section] 106A(c)(3).

(65) Id. [section] 106A(e)(1).

(66) Id.

(67) U.S. Const, art. I, [section] 8, cl. 8.

(68) 17 U.S.C. [section] 102(a) (“Copyright protection subsists … in original works of authorship fixed in any tangible medium of expression….”).

(69) See Complaint, supra note 13, at 2.

(70) Id. at 3.

(71) Id.

(72) Id. at 3-4 (“[S]uch exposure would be considered common in the tattoo industry.”).

(73) Id. at 4.

(74) Id.

(75) Id.; see Copyright Registration Number VA 1-265-074, entitled “Egyptian Family” (Aug. 11, 2004). Reed was required to register his artwork to be able to bring civil infringement action. 17 U.S.C. [section] 411(a) (2012) (“[N]o civil action for infringement of the copyright … shall be instituted until preregistration or registration of the copyright claim has been made in accordance with this title.”).

(76) Complaint, supra note 13, at 4.

(77) Id. at 4-5. Reed alleged infringement of exclusive rights granted by his copyright in the tattoo under 17 U.S.C. [section] 501(a), which states that “[a]nyone who violates any of the exclusive rights of the copyright owner as provided by sections 106 through 122 or of the author as provided in section 106A(a) … is an infringer of the copyright or right of the author, as the case may be.” 17 U.S.C. [section] 501(a). In relevant part, under [section] 106 the owner of a copyright has the exclusive rights:

(1) to reproduce the copyrighted work in copies or phonorecords; (2) to prepare derivative works based upon the copyrighted work; (3) to distribute copies or phonorecords of the copyrighted work to the public by sale or other transfer of ownership, or by rental, lease, or lending; … (5) in the case of literary, musical, dramatic, and choreographic works, pantomimes, and pictorial, graphic, or sculptural works … to display the copyrighted work publicly….

17 U.S.C. [section] 106(1)-(3), (5).

(78) Complaint, supra note 13, at 5-6. The doctrine of contributory infringement is derived from common law principles and is well established in copyright law. See Metro-Goldwyn-Mayer Studios, Inc. v. Grokster, Ltd., 545 U.S. 913, 930 (2005) (“One infringes contributorily by intentionally inducing or encouraging direct infringement.” (citing Gershwin Publ’g. Corp. v. Columbia Artists Mgmt., Inc., 443 F.2d 1159, 1162 (2d Cir. 1971))).

(79) Complaint, supra note 13, at 6-7.

(80) Id. at 7.

(81) Stipulation of Dismissal with Prejudice at 1, Reed v. Nike, Inc., No. 05-CV-198 BR (D. Or. Oct. 19, 2005).

(82) Verified Complaint for Injunctive and Other Relief, supra note 14, at 1-2.

(83) Id. at 2.

(84) Plaintiff’s Memorandum in Support of His Motion for Preliminary Injunction at 2, Whitmill v. Warner Bros. Entm’t Inc., No. 4:11-CV-752 (E.D. Mo. Apr. 28, 2011).

(85) Verified Complaint for Injunctive and Other Relief, supra note 14, at 4.

(86) Id. at 4-5.

(87) Plaintiff’s Memorandum in Support of His Motion for Preliminary Injunction, supra note 84, at 5-6.

(88) Verified Complaint for Injunctive and Other Relief, supra note 14, at 3 (alteration in original). When Whitmill tattooed Tyson, he was doing business as Paradox-Studio of Dermagraphics. Id. at 3.

(89) See Copyright Registration Number VA 1-767-704, entitled “Tribal Tattoo” (Apr. 19, 2011).

(90) Verified Complaint for Injunctive and Other Relief, supra note 14, at 7-8. Whitmill alleged infringement under [section] 501 of his exclusive rights under [section] 106 granted by his copyright in the Tyson tattoo.

(91) Id. at 7. Not only did Whitmill seek an injunction to stop Warner Brothers from continuing its use of the Tyson tattoo in promotional materials for The Hangover 2, but he also sought an injunction enjoining the release of the movie with the depiction of the tattoo. Id. at 8.

(92) Id. at 8.

(93) Order of Dismissal, Whitmill v. Warner Bros. Entm’t Inc., No. 4:11-CV-752 (E.D. Mo. June 22, 2011).

(94) Transcript of Hearing on Motion for Preliminary Injunction at 3, Whitmill v. Warner Bros. Entm’t Inc., No 4:11-CV-752 (E.D. Mo. June 21, 2011).

(95) Id.

(96) Complaint, supra note 15, at 1-2.

(97) Id. at 2.

(98) Id.

(99) Copyright Registration Number VA-1094-747, entitled “Lion Tattoo” (Feb. 24, 2012).

(100) See Complaint, supra note 15, at 3; UFC Undisputed 3, THQ, http://www.thq.com/ us/ufc-undisputed-3/360 (last visited Mar. 11, 2015).

(101) See Complaint, supra note 15, at 3.

(102) Id. at 3-4.

(103) See id. at 6.

(104) Id.

(105) See 17 U.S.C. [section] 501(a) (2012).

(106) See Complaint, supra note 15, at 6; 17 U.S.C. [section] 106(1).

(107) See Complaint, supra note 15, at 6; 17 U.S.C. [section] 106(2).

(108) See Complaint, supra note 15, at 6; 17 U.S.C. [section] 106(3).

(109) See Complaint, supra note 15, at 6; 17 U.S.C. [section] 106(5).

(110) See Complaint, supra note 15, at 7.

(111) Minute Entry, Escobedo v. THQ, Inc., No. 2:12-CV-2470 (D. Ariz. Dec. 11, 2013).

(112) In addition to the arguments made in this Note, there is a strong argument that human skin is not a “tangible medium of expression” under the Copyright Act; however, addressing that issue is beyond this Note’s scope. For an analysis of that issue see Amelle Sophia Millstein, Slaves to Copyright: Branding Human Flesh as a Tangible Medium of Expression, 4 Pace Intell. Prop. Sports & Ent. L.F. 135, 140 (2014).

(113) Transcript of Hearing on Motion for Preliminary Injunction, supra note 94, at 2.

(114) Id. at 2.

(115) See Laser Tattoo Removal, WebMD, http://www.webmd.com/skin-problems-and-treatments/laser-tattoo-removal (last visited Mar. 11, 2015) (discussing laser tattoo removal as the most effective surgical procedure for removing unwanted tattoos).

(116) 17 U.S.C. [section] 101 (2012).

(117) See 37 C.F.R. [section] 202.1 (2012) (“The following are examples of works not subject to copyright … (a) Words and short phrases such as names, titles, and slogans; familiar symbols or designs; mere variations of typographic ornamentation, lettering or coloring….”).

(118) See Beasley, supra note 12, at 1162.

(119) Id. In such a case it is possible that the tattoo artist does own the copyright in the “flash” art.

(120) Id.

(121) Id.

(122) 17 U.S.C. [section] 102(a) (2012).

(123) See Perzanowski, supra note 16, at 526-27.

(124) See Complaint, supra note 13, at 3; Complaint, supra note 15, at 2.

(125) See Copyright Registration, supra note 75; Copyright Registration, supra note 99.

(126) See Verified Complaint for Injunctive and Other Relief, supra note 14, at 2.

(127) See Copyright Registration, supra note 99.

(128) Since the focus of this Note is on copyrightability of tattoos and not the preliminary drawings, this point will not be examined further.

(129) See supra subsections I.B.1-2.

(130) 17 U.S.C. [section] 101 (2012).

(131) 490 U.S. 730 (1989).

(132) 17 U.S.C. [section] 101.

(133) However, it might be argued that tattooing a person who has numerous tattoos created by multiple tattoo artists could constitute a contribution to a “collective work.”

(134) 17 U.S.C. [section] 106. In the case of a joint work, certain rights granted to the tattoo artist may be limited by the rights of the client.

(135) See Verified Complaint for Injunctive and Other Relief, supra note 14, at 1.

(136) 17 U.S.C. [section] 106(1)–(3), (5).

(137) Id. [section] 101.

(138) Id.

(139) Id. (“[T]o transmit or otherwise communicate a … display of the work to … the public, by means of any device or process, whether the members of the public capable of receiving the performance or display receive it in the same place or in separate places and at the same time or at different times.”).

(140) Each of these appearances could also implicate the other exclusive rights granted by the Copyright Act, which might be infringed by Tyson or a third party such as a television network.

(141) 17 U.S.C. [section] 106.

(142) Id. [section] 504(b) (“The copyright owner is entitled to recover the actual damages suffered by him or her as a result of the infringement, and any profits of the infringer that are attributable to the infringement and are not taken into account in computing the actual damages.”).

(143) Visual Artists Rights Act of 1990, 17 U.S.C. [section] 106A.

(144) 17 U.S.C. [section] 106A(a)(3).

(145) U.S. Const, amend. XIII, [section] 1.

(146) 17 U.S.C. [section] 101.

(147) Id.; see supra subsection I.A.1 (discussing the fixation requirement).

(148) Object, Merriam-Webster, h115ttp://www.merriam-webster.com/dictionary/object (last visited Mar. 11, 2015).

(149) Declaration of David Nimmer at 16, Whitmill v. Warner Bros. Entm’t, Inc., No. 4:11-CV-752 (E.D. Mo. dismissed June 22, 2011).

(150) 17 U.S.C. [section] 407(a) (1). The publication requirement is satisfied once copies of the work are distributed to the public “by sale or other transfer of ownership.” Id. [section] 101.

(151) 17 U.S.C. [section] 202 (“Ownership of a copyright, or of any of the exclusive rights under a copyright, is distinct from ownership of any material object in which the work is embodied. Transfer of ownership of any material object, including the copy … in which the work is first fixed, does not of itself convey any rights in the copyrighted work….”).

(152) Id. [section] 109(a).

(153) Id. [section] 109(a), (c).

(154) Since [section] 109(c) only allows for display to “viewers present at the place where the copy is located,” it would still preclude Tyson from displaying the tattoo on television or in film. Id.

(155) See supra Section III.B.

(156) Under the Thirteenth Amendment, there is no circumstance in which Whitmill could legally obtain ownership of Tyson’s face. See U.S. Const, amend. XIII, [section] 1.

(157) See Kirtsaeng v. John Wiley & Sons, Inc., 133 S. Ct. 1351, 1355 (2013) (“[O]nce a copy … has been lawfully sold (or its ownership otherwise lawfully transferred), the buyer of that copy and subsequent owners are free to dispose of it as they wish.”).

(158) 17 U.S.C. [section] 109(d) (emphasis added).

(159) Sec Verified Complaint for Injunctive and Other Relief, supra note 14, at 3 (first and second alterations in original).

(160) For example, since a tattoo is not a “copy,” if a tattoo artist were to create a tattoo depicting Mickey Mouse, the tattoo artist would not be liable for infringing upon Disney’s copyright in that iconic character.

(161) See supra Section III.B.

(162) A court could conceivably require a person to keep the tattoo covered, or even more extreme, order surgical removal of the tattoo.

(163) See supra text accompanying note 123.

(164) See 17 U.S.C. [section] 101 (2012).

(165) This would not apply to the “performance” rights listed in [section] 106.

(166) U.S. Const, art. I, [section] 8, cl. 8.

(167) See Perzanowski, supra note 16, at 586.

 
 

 

Tattooing, Body Piercing, and Permanent Cosmetics

historical and current view of State regulations, with continuing concerns...

 
Tattooing Regulations - Body Art Journals - Unique Tattoo Artwork  | The Tattoo Concierge | www.TattooConcierge.com | The Artists Choice
 
 
Introduction
 
Tattooing and body piercing are flourishing, and the new innovations of branding and scarification continue to develop. Even more evident is the advent of cosmetic tattooing, advertised boldly in the newspapers and phone books as permanent makeup for a beautiful personal investment. While no national databases are available to provide an accurate picture of body art recipients, findings from several small, recent studies are consistent. They include published rates of 19 to 23 percent for tattooing among young adults 18 to 25 years of age and rates of 33 percent for body piercing (Armstrong, Roberts, Owen, & Koch, 2004; Drews, Allison & Probst, 2000; Forbes, 2001; Mayers, Judelson, Moriarty, & Rundell, 2002). A recent Ohio University poll found that about one of every seven adults was tattooed, with young adults (18 to 34 years of age) 10 times more likely to have the decorative designs (Hargrove & Stempel, 2003).
 
Another way to look at the presence of body art is to examine the number of studios in a state; the figures then become phenomenal. In Texas, with a population of 21 million people, almost 900 tattooing studios were registered in the state as of January 2004, with over half that number listed as beauty salons or spas performing cosmetic tattooing. Of the 599 body-piercing studios registered in Texas, approximately 300 combine both tattooing and body piercing. If one estimated that body-piercing studios average five piercings weekly, then over 155,000 yearly would be produced in just one state; the number of tattoos would be over 234,000.
 
Body art is an invasive procedure: For body piercing, jewelry is inserted into a tract; for tattooing, non-FDA-approved pigment is introduced into the skin by multiple punctures to produce indelible designs; and for permanent cosmetics, pigment is inserted into the eyelids, eyebrows, and lips (Tope, 1995a). Branding is a specific method of scarification resulting in a deliberate keloid formation. In each procedure, there is a release of serosanguinous fluid “accompanying the repetitive puncturing of tattooing, the puncture wounds of body piercing, and the application of heated steel,” predisposing the patron to local infections and systemic illness such as bloodborne diseases (Armstrong & Kelly, 2001, p. 16).
 
The public may assume that state regulations exist for body art, with regular inspections protecting the client, and that if there are problems with a studio, the state will automatically close it. Often it is not until a body art complication occurs and is reported to state health officials that the public begins to realize just how strong or weak these statutes can be for client safety. In reality, it may take over two years for the due-process procedures to work before a studio is shut down, if it even happens.
 
The purposes of this article are a) to provide a brief historical perspective of body art regulations, b) present the current status of state statutes as of September 20, 2003, and c) identify continuing concerns for further legislative regulations. While some believe people who get body art get what they deserve (Ferguson, 1999) and would therefore just leave them alone and let the customers have their own problems, effective body art regulations do provide several important guidelines. They
 
* provide guidance to the artists in safe practices,
 
* give advice for protection to the public, and
 
* provide some recourse, if there are complications.
 
Most reputable body art artists support these enforceable regulations and even work to help create them, as the regulations lend legitimacy to their practice (Armstrong & Fell, 2000; Armstrong & Kelly, 2001; Tope, 1995b).
 
A Brief Historical Perspective on Body Art Regulations
 
Tattooing and piercing have been around for thousands of years. While the popularity and acceptance of body art has waxed and waned, many injunctions, laws, and regulations have been implemented. Very early “regulations” included Moses’ remarks in Leviticus 19:28 forbidding any cuttings in the flesh or the printing of any marks. Also, there were the decrees banning tattooing by the Roman and Japanese Emperors, and the French 1869 national laws.
 
In the United States, the only federal agency that has examined elements of tattooing is the Food and Drug Administration (FDA); its concerns are the ingredients in tattoo pigment. These pigments were listed in the Food, Drug, and Cosmetic Act of 1938 as “color additives” and intended for topical use. The agency has considered better inspection of the pigments, but has never proceeded to undertake that review. Tattoo pigment for intradermal injection has never been approved (Tope, 1995a; Larkin, 1993).
 
For a time in the 1950s, several states passed tattooing regulations allowing only physicians to tattoo. Florida’s original statute still remains, although the state now has added doctors of osteopathy and dentists to the list of those allowed to administer tattoos. Also in the 1950s, there was a dramatic increase of hepatitis cases that caused the New York City health officials to close tattoo parlors and ban tattooing. Officials in that metropolitan area wrote that “tattooing was neither necessary, useful, or desirable, often associated with a morbid or abnormal personality” (Silvers & Gelb, 1991, p. 308).
 
Over the past 25 years, there have been many documented changes nationwide to the regulations regarding body art, especially tattooing. In 1979, Goldstein (1979) reported that only three states (California, Hawaii, Maine) had standards or inspections in their regulations, and seven states (Connecticut, Florida, Kansas, Massachusetts, Oklahoma, South Carolina, Vermont) prohibited tattooing. Many states (n = 36) did not report statutes of any type, although 10 of those states (Arkansas, Kansas, Kentucky, Maryland, Montana, New Jersey, New Mexico, New York, Oregon, Virginia) reported local tattooing ordinances in their larger cities. Goldstein makes the following comments about individual states: “Connecticut had no tattoo ‘parlors’ in the state” and that “the one tattoo parlor in District of Columbia was ‘regularly inspected for sanitary practices’ even though there is no law about tattooing” (Goldstein, p. 913). Montana reportedly had “rules governing tattooing race horses, but not people.”
 
Newspapers also have published articles about the conditions of tattooing. In 1988, one headline in a Fort Worth paper read, “Tattoo artists of Tarrant County (TX) are not answerable for cleanliness.” The article described “the lack of regulations for sanitation” and suggested that “this was disconcerting despite a two year old warning from the national Centers for Disease Control and Prevention (CDC) that a dirty tattoo needle can spread infectious diseases such as AIDS or hepatitis” (Polilli, 1988). At that time the only tattoo regulation in Texas was that the client be 21 years of age.
 
By 1989, 16 states had statutes of some form, requiring either licensing of the studio or licensing of the artist, while 31 states and the District of Columbia still did not have regulations (Stauter, 1989). Five of the 16 states (Connecticut, Florida, Indiana, Massachusetts, Vermont) still permitted only doctors or dentists to either perform or supervise the tattooing. At the same time, model legislation for disease prevention from tattooing was being proposed. While more states were enacting further legislation, a continued increase in both tattooing and body piercing was occurring, as well as the advent of the AIDS epidemic, the introduction of cosmetic tattooing (1984), and use of laser therapy for tattoo removal (Tope, 1995a). Backinger (1989) also raised concern about “personal service workers,” a term (which included tattoo artists) coined by CDC, and personal service workers’ close personal contact with clients, their exposure to contaminated blood or blood products, and the absence of a “system to ensure that appropriate infections control measures were being employed” (p. 31). Anderson (1992), a dermatologist who had had many patients with poor tattoos, agreed, stating that there was “little or no regulation of the training of tattooists, the sterilization of tattooing instruments, the screening of customers, or the inspection of tattoo parlors” (p. 207).
 
In that same year, the American Academy of Micropigmentation, an independent, nonprofit organization, was founded by a physician to help physicians, nurses, and derma technicians disseminate new techniques and methods in the field of cosmetic tattooing. A monthly newsletter, a journal, and an opportunity to take the certification examination are all part of membership.
 
Six years later, Tope (1995a) reported that 17 states had modified their tattoo regulations in the past 15 years, with some states issuing comprehensive regulations for infection control provisions. Using both written and phone inquiries, he obtained information to document 27 states still without tattooing regulations, six states (Alabama, Kansas, Maryland, New Jersey, New Mexico, Montana) with local ordinances, and four states consistently prohibiting tattooing (Massachusetts, Oklahoma, South Carolina, Vermont). Oregon’s legislation was lauded as the most comprehensive program because it included artist training, an examination, and mandatory continuing education for tattoo artists. Tope also advocated “more mandatory inspections of tattoo facilities and apprentice-ships and licensing for cosmetic and artistic tattoo providers” (p. 796). Body piercing was not discussed in Tope’s article as it was just beginning to become popular.
 
Following Tope’s regulatory review, Muscarella (1995) questioned the need for further regulations if there was a “low documented incidence of reported complications from tattooing” (p. 1058). Tope’s (1995b) response to this editorial question focused on the poor documentation of tattooing complications, the concerns of artists exposed to contaminated body fluids, and the infrequency with which artists were being vaccinated against hepatitis B virus. Tattooing was still banned in the same four states (Massachusetts, Oklahoma, South Carolina, Vermont) (Barad & Brown, 1997) in 1997.
 
Recognizing a need for better guidelines for governing the body art industry, the National Environmental Health Association (NEHA) gathered a task force of 21 members comprising representatives from three body art organizations, physicians, nurses, health educators, and individuals from relevant federal agencies to create a model code for body art. The intent of the code was to “establish public health criteria and recommendations as well as promote consistent regulations for adoption throughout the nation” (Armstrong & Fell, 2000, p. 27). Both the model code and a comprehensive guidebook for body art were published by NEHA in 1999 under the title Body Art: A Comprehensive Guidebook and Model Code (Body Art Model Code Committee, 1999) (readers can obtain copies by visiting the NEHA Bookstore at http://www.neha.org.) As part of the laudable support for this effort, four major body art organizations wrote letters for the model code that are found in the guidebook. Since the creation of the model code, several states and jurisdictions have referenced them in building their legislative action.
 
Documentation of body art regulations, which now included body piercing, was provided by Armstrong and Kelly (2001) in an article targeted at school nurses in 1999. While 33 states now had some form of regulation, others (10 states) either maintained or moved to local ordinances. Kansas had joined Oregon in having similar comprehensive regulations for body artists. Armstrong and Kelly noted that several states were reviewing their regulations as the popularity of body art continued.
 
Two court cases (Massachusetts, 2000, and South Carolina, 2002) tested the lack of state tattooing regulations under the First Amendment, maintaining that it was a form of art and expression (N. Ridley, personal communication, January 23, 2001; University of South Carolina, School of Law, 2002). In South Carolina, the state successfully argued that tattooing posed a risk to public health, and the motion was denied (University of South Carolina, School of Law, 2002), whereas in Massachusetts, the superior court agreed that the statute did violate the First Amendment (N. Ridley, personal communication, January 23, 2001). Subsequently Massachusetts has drafted and approved new regulations.
 
Current Status of State Regulations
 
In September 2003, a table was prepared by the author to document the regulations of the 50 states and the District of Columbia for the three common types of body art (tattooing, body piercing, cosmetic tattooing), as well as for branding. The table, which is too large to be printed here, can be found at http://www.nursing.ttuhsc.edu/armstrong/StateRegulationsArticle.pdf. Much of the information was verified through telephone inquiries to the specific state agencies since some of the initial Internet sources tended to perpetuate old information.
 
Three major factors seemed to emerge as this table was completed: 1) remaining current with the latest regulations is challenging as some states seem to be changing their response to body art safety each legislative session, 2) the strength of these regulations still varies widely, and c) almost 36 states have changed their body art legislation since 1998.
 
As of September 2003, 34 states have regulations for both tattooing and body piercing, 39 states for tattooing only, and 35 states specifically for body piercing. Some (Michigan, New Jersey, Oklahoma–for body piercing only–Massachusetts, and Mississippi) passed their legislation in 2003, and Kentucky’s went into effect in 2004. Four of these states (California, Indiana, Minnesota, and South Dakota) report that they have limited regulations while their cities or counties have developed more stringent local ordinances. In another three states (Connecticut, Florida, and South Dakota), a physician, dentist, or doctor of osteopathy still supervises tattooing. While the language varies, statewide regulations commonly address the definition of body art, the procedures needed for sanitation and sterilization, procedures for single-use items, competency requirements for personnel, infection control, client records and retention, preparation and care of the body art area, and the enforcement measures and prohibitions related to the services. In addition, state laws address concerns that patrons should have skin free from active disease and should not be under the influence of alcohol or drugs at the time the body art is administered.
 
Of interest are some state regulations that mention branding (n = 19), implants (n = 4), and scarification (n = 4); the newest procedure of tongue splitting is listed and prohibited in two states (Florida and Texas). Three states require that signs disclosing risks be posted in studios (Alabama, Louisiana, and Minnesota), whereas others states (Alabama, Colorado, Delaware, and Louisiana) require a detailed client history, especially with respect to medical conditions like diabetes, blood disorders, and epilepsy. Client records need to be maintained at a studio for two to three years in 26 states, while one state (Alabama) requires six years. Rhode Island mandates a criminal history of the artists and mandatory reporting of body art complications to the health department, but this reporting is being done on a limited basis; two others states (New Hampshire and Hawaii) require that artists have a medical examination before registration. While eight states (Alaska, Connecticut, Kansas, Maryland, Minnesota, New Jersey, Ohio, and Tennessee) describe specific numbers of hours for apprenticeships, others require a specific body of knowledge (and examination) covering content such as bloodborne disease (15 states), sanitation (three states), CPR (three states), and anatomy/physiology (Alaska, Massachusetts); the requirement may relate to tattooing, body piercing, or both. Texas will not implement its recently passed bloodborne-disease course requirement because of budgetary constrains and significant cost impacts. Hepatitis B vaccinations of all body art personnel are required in only eight states (Alabama, Colorado, Connecticut, Delaware, Louisiana, South Carolina, Tennessee, and West Virginia). Written examinations and mandatory continuing education are required in the two states that have the most comprehensive regulations (Kansas, Oregon); Alaska’s new regulations are similar.
 
The age of the patron at the time of the body art also varies. Eighteen states are firm that patrons must be at least 18 years of age. Another 22 states cite the age of 18 as a guideline, then use language to include parental/guardian consent, notarized signatures, or both, providing latitude for younger patrons to obtain body art. Five other states (Arizona, Florida, Hawaii, Tennessee and Wisconsin) allow patrons younger than 18, whereas South Carolina maintains that no body art may be administered until the patron is 21 years of age. Several states also stipulate that the body art artist must be at least 18 years of age.
 
In contrast, seven states (Illinois, Nebraska, New Mexico, North Dakota, Pennsylvania, Virginia and Wyoming) have no statewide regulations and still elect to use either city or county ordinances as enforcement tools. In four states, the business licensing of tattooing is emphasized rather than sanitation (Maryland, Pennsylvania, Washington, and the District of Columbia). Only two areas (Idaho and the District of Columbia) have no regulations or ordinances for tattooing, body piercing, or cosmetic tattooing, while Oklahoma still maintains a total prohibition on tattooing.
 
The popularity of permanent cosmetic tattooing seems to correspond to the amount of industry regulation addressing the procedure. Twenty-nine states mention permanent makeup in their body art regulations, with most of them referencing their original tattooing rules. Five of these states have chosen to separate their cosmetic-tattooing rules from the tattooing and body-piercing regulations. Georgia maintains that only a physician or doctor of osteopathy can tattoo within one inch of the eyes, whereas South Carolina and Hawaii permit only physicians to tattoo on the face. Two states (Maine and New Jersey) use successful completion of the American Academy of Micropigmentation Certification exam as the qualification requirement for those performing permanent makeup. Oklahoma has created its own micropigmentation examination; Nevada and Pennsylvania prohibit permanent cosmetic tattooing in beauty salons; and in New Hampshire, cosmetologists have to consult with physicians regarding their permanent makeup practice.
 
What Still Needs to Be Done
 
For many years, the presence of body art was ignored, often because the studios were located “on the other side of town” and only “certain types” of individuals obtained it. It was a service without accountability and scrutiny, commonly referred to as an “artist-customer regulated business” (Armstrong & Kelly, 2001, p. 13). Today, those studios are closer to residential areas, located in local beauty salons, across the street from schools, in the malls, or at fraternity parties. Except in a few states, there are still no specific curriculum, training, or mandatory continuing-education requirements for the artists performing these invasive procedures. Anyone with $300 can purchase a kit from a trade journal, complete with the equipment and procedural videos needed to get started, and become an artist. Creativity abounds with respect to where a body art studio may be established.
 
The need for up-to-date regulations remains important. While it is commendable that the number and depth of state regulations for body art have risen dramatically over the past 25 years, concerns still remain (Anderson, 1992; Stauter, 1989; Tope, 1995a). More work is needed to protect the public. Areas in which further protection is needed are outlined below.
 
Standard Precautions
 
With every body art procedure that is performed there is exposure to contaminated body fluids, yet not all patrons of body art are vaccinated against hepatitis B virus, and few states require vaccinations of the body art personnel. Presently less than half of the states require an examination or even annual attendance at bloodborne-disease courses, or adequate education in sanitation, sterilization, or procedural precautions beyond an initial registration process with the state. In addition, body art artists come from all socioeconomic and educational backgrounds, so use of a variety of teaching methodologies for this education is important.
 
In some states, a course on standard precautions given by any organization is accepted to fulfill course requirements, with no specification as to content or length of course. Standard-precautions courses should be industry specific so that body art artists can readily apply the information to their practices–in contrast to course content that contains broad sweeping statistics and information. A novel idea is to use reputable body art artists to help plan, provide, and evaluate the content of standard-precautions courses; NIOSH personnel, in cooperation with OSHA, are presently developing such courses. This approach will certainly stimulate participation. Course regulations should especially cover artists who provide body art in temporary locations such as mobile vans, flea market booths, and rock concert venues, given the questionable surroundings and lack of proper sanitation facilities in these locations.
 
Documentation of Complications
 
While most body art continues to be administered without problems, there is a potential for local, as well as systemic, diseases with any break in the skin (Barad & Brown, 1997; Haley & Fischer, 2001; Haley & Fischer, 2003; Hellard, Aitken, Mackintosh, Ridge, & Bowden, 2003; Larkin, 1993; Long & Rickman, 1994; Tope, 1995b). Only one state (Rhode Island) mandates reports of complications to its health department, and this requirement has produced limited results. Overall, there are no states or national databases that effectively collect information on the number of complications arising from body art when and if complications are presented to a health provider. In 2000, among seven children or young adults (10 to 19 years of age) who had received high-ear piercings from a spring-loaded piercing gun, an outbreak of Pseudomonas aeruginosa resulted in hospitalization, surgery, and several cosmetic ear deformities; an additional 18 infections were suspected. This occurrence was documented in a state that already had stringent body art regulations and became known because it occurred in a small community (Keene, Markum, & Samadpour, 2004). Importantly, health officials quickly employed effective investigative techniques to report the common-source outbreak; organisms were traced to a single-use disinfectant spray bottle that was being re-used and a sink where the solution had been mixed.
 
Further examination and scientific research should be undertaken regarding the specific body-piercing instrumentation of spring-loaded piercing guns, especially in relation to upper-ear cartilage piercings. No accurate documentation of complications has been undertaken to characterize the far-reaching effects of this equipment. Meanwhile, the equipment has been associated with numerous reports of infections both with ear lobe and upper-ear cartilage piercings, whether the problem is the blunt trauma predisposing the surrounding pierced tissue of patrons to potential infections, the ability to properly disinfect the equipment, the poor training of shopping-mall employees in the use of the equipment, or improper use of the equipment (Armstrong & Kelly, 2001; Armstrong & Fell, 2000; Keene et al., 2004; Long & Rickman, 1994; More, Seidel, & Bryan, 1999).
 
In addition, as more people have their body art for longer periods of time, more long-term effects could be noted. One example already observed is the long-term effect of tongue piercings on the gums and teeth (Smith, Wang, & Sidal, 2002). When body art patrons do encounter problems, most clients initially seek advice from the studio artist rather than from health providers, so many problems are not even known in the health community. Many medical personnel do not take the time to publish. Only a few complications (and often the unusual) are published, and publishing cycles can be slow, giving an incomplete picture.
 
Uniform Regulations
 
State lawmakers who believe that prohibiting body art, emphasizing business licensing, or pushing for limited regulations can be the way to deal with this phenomenon are being extremely unrealistic. They are denying their citizens quality protection by not proposing a more comprehensive regulatory approach. In Northern Texas and Central Arkansas, tattoo studio artists are extremely pleased that Oklahoma continues to prohibit tattooing–it keeps their business brisk. Oklahoma also has a large body art equipment business in the state. While wishful thinking might hope that body art will go away, the opposite has occurred in the last 20 years, as seen by the sheer number of studios and body art, and the development of further instances of creativity such as branding, scarification, implants, and tongue splitting. Next could be a recent Netherlands trend of implanting tiny pieces of jewelry in the mucous membrane of an eye, a style called “JewelEye” (Reuters, 2004).
 
Enforcement
 
While having state regulations is important, the key element is the enforcement of the legislative mandates. Often, the amount of enforcement depends not on the quality of the regulations, but on the human, time, and financial resources of the departments and on the commitment of individuals to making the body art industry safe (Armstrong & Kelly, 2001). For example, in Texas, when the body-piercing regulations were passed, no moneys were appropriated for carrying out any surveillance of the studios. Moneys had to be redirected from tattooing surveillance if there were problems. This statute has since been corrected, but few inspections in body-piercing studios were carried out during that time, even though regulations were in place and complaints were being received.
 
Unannounced, periodic visits to body art studios would be ideal; unfortunately most states still respond only reactively, to complaints. Interagency cooperation (health departments cooperating with police departments) is also important, as well as the types of infractions for which the regulations provide. Police do not want to waste their time, so “with stiffer penalties with violations, they are more cooperative to assist during enforcement” (Armstrong & Kelly, 2001, p. 15).
 
Conclusion
 
This report has provided some history, as well as a current overview, of state regulations for tattooing, body piercing, branding, and cosmetic tattooing. Overall, many states have taken a proactive stance, but more work is needed. The NEHA model code and guidelines (Body Art Model Code Committee, 1999) should continue to be an excellent example for states and local jurisdictions that need to review effective guidelines for both tattooing and body piercing. Environmental health personnel can play an important, proactive educative role in obtaining more legislation based on effective rationale for client safety; body art, in its many forms, is not likely to go away for a long time.
 
Acknowledgements: The author acknowledges the special assistance of Abbie Cox, B.A., as well as partial funding of this work by the Texas Tech University Health Sciences Center School of Nursing Research and Practice Committee.
 
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Myrna L. Armstrong, Ed.D., R.N., F.A.A.N.

Corresponding Author: Myrna L. Armstrong, Professor and RN-BSN Coordinator, School of Nursing, Texas Tech University Health Sciences Center, TTU-Highland Lakes, Marble Falls, TX 78654. E-mail: [email protected]