Segarra on Tattoos and the Unreasonable Logic of Reasonable Suspicion

Curtis Segarra, University of Michigan Law School, is publishing Tattoos and the Unreasonable Logic of Reasonable Suspicion in volume 63 of the Criminal Law Bulleting. Here is the abstract.

The U.S. is a tattooed nation, with nearly a third of the population sporting at least one tattoo. Yet law enforcement regularly uses tattoos in their justification to stop, question, pat down, and briefly detain individuals under the Terry—or reasonable suspicion—doctrine, often claiming the tattoos are gang related or indicate criminal involvement. Through interviews and case examples, I argue that such practices can lead to racialized and biased policing. Even when law enforcement interpretations of tattoos do not quite amount to biased policing, they still run afoul of the original logic of Terry, the case that created the reasonable suspicion doctrine. Given the prevalence of tattoos in the U.S., this misuse of Terry goes against the Fourth Amendment. Therefore, I argue that courts should employ a bright-line rule against the use of tattoos in the law enforcement reasonable suspicion analysis. This fills a gap in the existing literature (which focuses primarily on the use of tattoos within gang databases) by arguing for a strengthening of Fourth Amendment protection for all tattooed individuals. I show that a bright-line rule would not improperly hinder police officers' ability to do their jobs and that such a rule is consistent with similar prohibitions courts have placed on the use of race within the reasonable suspicion framework. I conclude that the use of tattoos in law enforcement's reasonable suspicion analysis is ripe for abuse and must be checked by a judicial bright-line prohibition on the use of tattoos to justify an intrusion under the Fourth Amendment, thereby addressing a growing, but under-appreciated, problem developing in American policing.

Download the article from SSRN at the link.

Hadley on Whitmill v. Warner Bros. and the Visibility of Cultural Appropriation Claims in Copyright Law @DrMarie_IP @uonlawschool

Marie Hadley, Newcastle Law School, University of Newcastle (Australia), has published Whitmill v Warner Bros. and the Visibility of Cultural Appropriation Claims in Copyright Law at 42 European Intellectual Property Review 223-229 (2020). Here is the abstract.

The Māori-inspired tattoo at the heart of the copyright infringement case of Whitmill v Warner Bros. has attracted allegations of cultural appropriation in Aotearoa/New Zealand. An examination of the Māori cultural appropriation claim that surrounds the tattoo and its invisibility throughout the Whitmill v Warner Bros. legal proceedings, shows how the legal system does not receive Indigenous cultural claims over the cultural imagery and arts styles that inspires outsider imagery as an intellectual property interest.

Download the article from SSRN at the link.

Hadley on Tribal Tattoos and the Politics of Cultural Appropriation Claims @DrMarie_IP

Marie Hadley, Newcastle Law School, has published Tribal Tattoos and the Politics of Cultural Appropriation Claims. Here is the abstract.

This article explores the nature of cultural appropriation claims as a statement of possession over cultural property and a performative utterance that resists oppression. A close study of the aesthetics and ethics of tribal tattoo imagery, and in particular the tattoo created by artist S. Victor Whitmill for former world heavyweight boxer Mike Tyson, is used to reflect upon the politics of alleging cultural appropriation. Empirical fieldwork with Māori tā moko artists is used to show that cultural appropriation claims are unstable property claims whose politics exceed the merely possessive. Critical perspectives on performativity expand the inquiry. It is argued that seeking inspiration from the art of the Other, as tribal tattoos do, is problematic – not so much because of the appropriation of cultural property per se but rather because doing so recreates colonial dynamics of demand, desire, and oppression.

Download the article from SSRN at the link.

Tat That

Aaron Perzanowski, Wayne State University Law School; Notre Dame Law School, has published Intellectual Property Norms in the Tattoo Industry. Here is the abstract.

This article reports the results of the first qualitative study of the norms surrounding creative production, ownership, and copying in the multi-billion dollar U.S. tattoo industry. Despite the availability of copyright protection, the tattoo industry has largely ignored formal law in resolving disputes over copying and use of original works. Instead, it relies on a complex set of social norms enforced through informal mechanisms. Those norms are a product of both cultural and economic factors that offer broader lessons for intellectual property law and policy.

Download the paper from SSRN at the link.