Ink and Cultural Appropriation

'Whitmill v Warner Bros. and the Visibility of Cultural Appropriation Claims in Copyright Law' by Marie Hadley in (2020) 42(4) European Intellectual Property Review 23-229 comments 

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.

Hadley's 'Historical Contingency of Cultural Appropriation: Government Order No. 7 (1831) and the Trade in Mokamokai' in (2021) 8(1) Law & History explores 

the historical contingency of cultural appropriation. A close study of the trade in preserved tattooed Māori heads (‘mokamokai’) and the law that regulated the trade between Aotearoa New Zealand and New South Wales – Government Order no. 7 (1831) – is used to reflect upon the nature of intercultural consumption. The conditions under which the retail trade in mokamokai developed and thrived are considered. It is argued that the historical demand for mokamokai is characterised by an oppressive appreciation of cultural difference, and the trade’s supply by Māori revealing of local agency and political acumen. Studying the production, consumption, and regulation of culture in a specific historical site offers insight into the intersection of commercial imperatives, problematic social dynamics, and local practices, furthering understanding of cultural appropriation as a form of unauthorised cultural engagement.

Ink

'A tattoo is not a face. Ethical aspects of tattoo-based biometrics' by Fabio Bacchini and Ludovica Lorusso in (2018) 16(2) Journal of Information, Communication and Ethics in Society 110-122 comments

This study aims to explore the ethical and social issues of tattoo recognition technology (TRT) and tattoo similarity detection technology (TSDT), which are expected to be increasingly used by state and local police departments and law enforcement agencies. 

The authors argue

Biometrics is the science that aims at measuring and analysing a person’s unique characteristics, both physical and behavioural, for identification and verification purposes. Biometric technologies are used for identification or recognition to determine who the person is, through one-to-many comparison, and for verification or authentication to determine whether the person is who she claims to be, through one-to-one comparison (Mordini and Petrini, 2007). This comparison is made between a “live” digital image of a piece of the body (face, eyes and fingers) and an image of the same piece of the body previously recorded and archived into databases. This previously recorded body information can be retrieved all the time we aim to identify one person or verify her identity. Among the wide-ranging applications of biometric technologies for people verification and identification are the improvement of security against criminal acts and terrorist attacks and forensic uses such as the identification of the perpetrator of an offence. Traditional biometric technologies for people verification and identification include face recognition, gait recognition, fingerprint recognition and iris recognition (Li and Jain, 2011; Jain, Flynn and Ross, 2008; Tistarelli et al., 2009). Recently, so-called soft biometric traits, such as scars, marks and tattoos, are being increasingly used to complement primary biometric identification systems (Lee et al., 2008; Heflin et al., 2012).

Tattoo recognition technology (TRT) is one of the emerging fields in biometrics. In fact, the spread of tattooing in Western countries since the 1990s has been particularly impressive. Many studies report that the incidence of tattooing among respondents in North America and Europe is approximately 20 to 25 per cent (Laumann and Derick, 2006; Swami et al., 2016; Tate and Shelton, 2008); as this percentage is rapidly increasing, it is easy to understand why biometrics is looking at tattoos as a new frontier for identifying people – or at least for integrating their identification. Recurring to tattoo recognition is particularly useful in criminal identification, for instance, when a primary biometric trait such as face or fingerprint is not available.

Of course, not all tattoos are visible (all the time); Dillingh et al. (2016) calculate that 29 per cent of the tattooed population has at least one “subjectively visible tattoo” (i.e. a tattoo that is reported as “normally visible to everyone” by the subject), and 12 per cent has at least one “objectively visible tattoo” (i.e. a tattoo placed on the face, head, neck or hands – meaning that the tattoo is visible even when the individual is wearing a suit and not just when she/he wears a T-shirt and/or shorts).

Most TRT systems developed so far use a keyword-based tattoo image matching (e.g. the ANSI/NIST-ITL1-2011 standard), which is actually highly inefficient due to limitation of the available vocabulary, frequent need of multiple keywords to label a single tattoo image and subjectivity of classification. Recently, alternative retrieval systems were created that extract key-points from tattoo images and use an unsupervised ensemble ranking algorithm to measure the visual similarity between two tattoo images (e.g. tattoo-ID system developed by Jain et al., 2007, 2009; Lee et al., 2008, 2012; Manger, 2012). Some scholars are even starting to develop automatic tattoo sketch to image matching methods, which are particularly useful in cases in which the tattoo image of a suspect is not available, but a sketch of the tattoo can be drawn based on the verbal description provided by an eyewitness or the victim (Han and Jain, 2013).

In this paper, we explore the ethical and social issues of TRT. We want to understand whether TRT deserves special ethical attention in comparison with face recognition and other standard biometric technologies. Although in biometric literature it is customary to introduce tattoo-based biometrics as just another application of biometrics that apparently does not exhibit new specific ethical worries, we believe that the nature of tattoos is such that the opposite presupposition should be advanced before inquiry. In fact, tattoos are meaningful objects, and are capable to reveal much information about us, our identities and our beliefs and affiliations. We will show that tattoos are even more ethically sensitive than faces and that tattoos’ uses for criminal identification or criminal prevention should be carefully monitored in advance, in all their ethical aspects.

Along with TRT, we also examine tattoo similarity detection technology (TSDT), which is aimed at identifying similarity-based classes of tattoos and consequently classes of tattooed individuals supposed to share similar psychological, ideological, cultural, social, religious as well as behavioural properties. After reporting how in particular FBI and the National Institute of Standards and Technology in USA are involved in developing TSDT, we argue that TSDT raises red flags for advocates of civil rights, for instance, because it threatens, in multiple ways, the liberties protected by the First Amendment to the USA Constitution. We remark that TSDT classifies as very high risk for privacy, civil liberty and civil rights according to the criterion for a biometric technology implementation’s ethical risk degree assessment recently proposed by Garvie et al. (2016); and we claim that TSDT also represents a possible factor negatively affecting the health of the people knowing or suspecting to be subjected to a special surveillance in virtue of their tattoos.

The major ethical concern raised by TSDT is perhaps its relying on premises very similar to those founding racist thoughts. We stress that TSDT presupposes the usefulness of human classification based on visible features for prediction of attitudes and behaviours as well as for criminal prevention – an idea that we can find to ground many forms of racism.

Not only does TSDT constitute the unacceptable negative discrimination of tattooed as opposed to un-tattooed people, and of individuals having visible as opposed to those having invisible tattoos, it exhibits what we call indirect negative discrimination against certain demographic groups that are found more frequently tattooed than others and, consequently, are overrepresented in tattoos databases, thus being affected by disproportionately higher risk to be found as a match for a given suspect. We believe it is important to cast light on these indirect forms of negative discrimination that would otherwise easily remain undetected.

Inked

'Tattoos and IP Norms' by Aaron Perzanowski in (2013) 98 Minnesota Law Review 511 comments

Twenty-one percent of adults in the United States — more than sixty-five million Americans — have at least one tattoo. For those under age forty, that percentage nearly doubles. Not surprisingly, the tattoo business is booming. By some estimates, the U.S. tattoo industry generates $2.3 billion in annual revenue. Once the mark of sailors, convicts, and circus performers, the tattoo has infiltrated mainstream society.

Despite its countercultural origins, the tattoo industry shares much in common with other, more familiar creative industries. Fundamentally, it capitalizes on market demand for original creative works. Yet as public goods, the value of those works is readily appropriable through copying. Predictably, copying is both a practical reality and a source of concern within the industry. But unlike their counterparts in most other creative industries, tattooers nearly uniformly reject formal legal mechanisms for adjudicating claims over ownership and copying. Although tattoos fall squarely within the protections of the Copyright Act, copyright law plays virtually no part in the day-to-day operation of the tattoo industry. Instead, tattooers rely on a set of informal social norms to structure creative production and mediate relationships within their industry.  

Following in the tradition of earlier scholarship exploring the intersection of intellectual property law and social norms, But this Article differs from much of the prior work on intellectual property and social norms in two ways. First, the tattoo industry norms reported here represent the first example of market-driven informal alternatives to intellectual property law that emerged despite fully applicable formal protections. Unlike norms that emerge in the shadow of some barrier to meaningful intellectual property protection,this Article sets out with three objectives: to provide a descriptive account of the norms related to creative production within the tattoo industry; to explain both the industry’s choice to forego formal assertions of legal rights and the particular content of the norms it has embraced; and to consider the implications of this case study for intellectual property law and policy more generally.

But this Article differs from much of the prior work on intellectual property and social norms in two ways. First, the tattoo industry norms reported here represent the first example of market-driven informal alternatives to intellectual property law that emerged despite fully applicable formal protections. Unlike norms that emerge in the shadow of some barrier to meaningful intellectual property protection tattoo industry norms function as an informal system of community governance that developed despite an applicable body of formal law. And unlike norms governing nonmarket behavior, tattoo industry norms prevail despite the same profit motive characteristic of many creative fields. 

Second, tattoo industry norms are unique because they must account for a more complex set of relationships than those observed in earlier case studies. Tattooers must establish norms that govern not only their interactions with each other, but with clients who play an important role in the creation and use of their works as well. Further complicating matters, aside from copying within their industry, tattooers are faced with the question of the propriety of copying outside of it. This overlapping complex of relationships between tattooers, clients, and the broader art world yields a correspondingly rich, nuanced, and perhaps contradictory set of creative norms. 

Part I of this Article offers a brief history of the practice of tattooing — beginning with its widespread use in early civilizations, then turning to its colonial reincorporation into the West, and the recent emergence of the “tattoo renaissance. This Part will also introduce the basic structure and vocabulary of the contemporary tattoo industry.

After establishing the doctrinal applicability and practical irrelevance of formal copyright law to tattoos, Part II catalogs the norms that structure the tattoo industry. To develop this descriptive account, I conducted fourteen in-person qualitative interviews in early 2012 with tattooers throughout the United States, identified through snowball sampling relying on existing industry contacts. In terms of geography, gender, experience level, work environment, style, and clientele, these interviews capture a diverse, if not necessarily representative, cross section of perspectives within the tattoo community.

These interviews revealed five core norms. First, tattooers as a rule recognize the autonomy interests of their clients both in the design of custom tattoos and their subsequent display and use. Second, tattooers collectively refrain from reusing custom designs — that is, a tattooer who designs an image for a client will not apply that same image on another client. Third, tattooers discourage the copying of custom designs — that is, a tattooer generally will not apply another tattooer’s custom images to a willing client. Fourth, tattooers create and use pre-designed tattoo imagery, or “flash,” with the understanding that it will be freely reproduced. Finally, tattooers generally embrace the copying of works that originate outside of the tattoo industry, suchas paintings, photos, or illustrations. In some ways, these norms unintentionally echo familiar concepts from copyright law, but they differ from formal law in important respects as well.

Part III offers a number of complementary explanations for the content of tattoo industry norms and the industry’s reliance upon them. Both the culture and economics of the tattoo industry gave rise to its particular set of norms. Tattooers share a disdain for authority and a history of harsh legal regulation that renders them generally hostile to the legal system. Perhaps more importantly, as a deeply client-driven enterprise, the tattoo industry is sensitive to consumer expectations. Those expectations provide strong incentives for the development of norms in order to preserve the industry’s collective interest in the continued viability of the market for custom tattoos. Finally, tattoo norms also erect barriers to entry to the increasingly crowded field of tattooers, revealing the guild-like nature of the industry.

Part IV concludes by considering the broader lessons the tattoo industry offers for intellectual property law and policy. The tattoo industry’s success reveals the importance of customizing creative goods to deter widespread copying and of bundling easily copied creative goods with difficult-to-copy personal services.

Stigma

'Bankruptcy Stigma: A Socio-Legal Study' by Michael D Sousa in (2014) 87 American Bankruptcy Law Journal comments

 For as long as the institution of bankruptcy has existed, legal commentators have debated whether it is appropriate for debtors to experience some social stigma upon filing for personal bankruptcy - that is, whether it serves the goals of bankruptcy law for debtors to feel shame. While this issue has been extensively discussed as a theoretical matter, to date no legal commentator or scholar has examined the question as an empirical matter: do debtors in fact associate feelings of shame with filing for bankruptcy, and, if so, why (or why not)? This article, for the first time, undertakes precisely this inquiry. Specifically, the article relies on empirical methods to report findings gathered from extensive interviews with debtors themselves. What emerges is that debtors experience a wide array of feelings associated with filing for bankruptcy, from debilitating shame to no shame at all. This finding, in turn, raises serious questions about the theoretical role of shame and stigma in designing bankruptcy law and policy.

Sousa states that

The word “stigma” traces its origins to ancient Greece, where the citizens of Attica and Athens branded their slaves with a tattoo known as a “stigma,” stemming from the word “stig,” which meant “to prick.” Today we use the terms “stigma” and “stigmatization” to refer to the societal disapproval associated with an individual or group based upon some characteristic, trait, or behavior that deviates from accepted norms or expectations. Traditionally, sociologists have limited their studies on stigmatization to the physically disabled, mentally disabled, mentally ill, homeless, homosexual, elderly, or the stigma associated with being a known criminal, prostitute, or a member of a minority group. While the characteristics and traits that receive social opprobrium may differ from one society to the next, the phenomenon of stigmatization is universal and the volume of sociological literature on stigmatization is, in a word, massive. 

While sociologists consider the phenomenon of stigma to be universal, conceptions of what attributes tend to be stigmatized are bound by culture, time, and history. Beliefs about what attributes receive a stigma are social constructs and are “socially distributed” throughout a particular culture. In the western world, one such attribute appears to be the moral disapproval of personal indebtedness and the general societal disdain towards individuals who file for bankruptcy protection. 

To date, very little sociological attention has been devoted to studying the stigma associated with being heavily in debt and, in particular, with declaring bankruptcy. Despite the existence of American bankruptcy law for over one hundred eighty years and the escalating use of personal credit in America, only a handful of studies have addressed this stigma. The scholars in this small group have primarily focused on the question of whether bankruptcy stigma exists in modern society and whether it has declined over the years. They have reached sharply differing conclusions. 

The need to study bankruptcy stigma remains relevant today. The filing rate for consumer bankruptcy debtors has risen steadily since the 1960s, with the greatest increase occurring during the 1990s. This dramatic spike in consumer bankruptcy petitions reinvigorated public debate over the role and efficacy of stigma as a means of controlling the bankruptcy filing rate. From the 1990s to the present, more than one million individuals have filed for bankruptcy protection every year. The 2005 Amendments to the Bankruptcy Code, through the Bankruptcy Abuse Prevention and Consumer Protection Act (BAPCPA), were predicated, in part, on a belief that debtors were abusing the bankruptcy process and that the shame and stigma associated with bankruptcy had eroded. The sweeping changes in the Bankruptcy Code were designed to ferret out the abusers, allowing debtors with primarily consumer debts to file a Chapter 7 bankruptcy petition only if they truly had no ability to repay a meaningful portion of their debts. It has been approximately eight years since BAPCPA took effect. There is a need to reexamine whether those who ran the gauntlet under this new law and were deemed worthy of filing chapter 7 bankruptcy, nevertheless, continue to experience shame associated with having declared bankruptcy. 

This Article does not address whether the changes in the law were successful in screening out “abusers,” nor does it intend to weigh in on the debate as to whether bankruptcy stigma has eroded over the past several decades. Instead, this Article offers a synthesis of existing scholarship on the nature of bankruptcy stigma and then presents the findings of my qualitative, sociological study of this issue. The first half of the Article will address the sociology of stigma in general terms, offer possibilities for the cultural sources of bankruptcy stigma, and then summarize the existing studies that have focused exclusively on bankruptcy and debt stigma. The second half of this Article will present my empirical findings on bankruptcy stigma, based on my study of consumer debtors who filed for bankruptcy in the years 2006, 2008, and 2010. 

In the law and society tradition, my approach here is not to explain the act of filing for bankruptcy relief in legal terms, but in social terms. Therefore, my main concern is not in advancing prescriptive arguments about bankruptcy law in general or in making recommendations for revising the Bankruptcy Code. Rather, my overriding purpose is to explain how consumer bankruptcy filings affect the lives of the individuals who have sought its relief. To borrow a phrase from Roger Cotterrell, my purpose is to offer a small “picture[ ] of the social world of law” from the perspective of former bankruptcy debtors, and to convey and describe their experiences with filing for bankruptcy. In sum, my findings suggest that debtors’ internalized notions of shame and stigmatization today occupy a full spectrum of attitudes.

Ink

Amid controversy over claims of regulatory overreach and claims that Queensland Police are requiring recreational motorcyclists (as distinct from members of outlawed motorcycle gangs) to remove tshirts or leathers in order to facilitate photography of tattoos it is worth looking at the state legislation.

Section 40 of the Police Powers & Responsibilities Act 2000 (Qld), noted in the past, provides that -

Person may be required to state name and address 

40(1) A police officer may require a person to state the person's correct name and address in prescribed circumstances. 

40(2) Also, the police officer may require the person to give evidence of the correctness of the stated name and address if, in the circumstances, it would be reasonable to expect the person to be in possession of evidence of the correctness of the stated name or address or to otherwise be able to give the evidence. 

40(2A) If— (a) a police officer reasonably suspects the person is a person mentioned in section 41(ba)(i) or is a person mentioned in section 41(ba)(ii); and (b) the person can not provide evidence of the correctness of the stated name or address when the requirement is made; the person may be detained for a reasonable time to confirm the correctness of the stated name and address. 

40(2B) If the police officer reasonably suspects it is necessary to do so to confirm the correctness of the stated name given by a person mentioned in subsection (2A), the police officer may take or photograph all or any of the person's identifying particulars. 

40(2C) If the person is not proceeded against for an identifying particulars offence within 12 months, the identifying particulars must be destroyed within a reasonable time in the presence of a justice.

'Identifying Particulars' are defined as "any of the following" -

(a) palm prints; 

(b) fingerprints; 

(c) handwriting; 

(d) voiceprints; 

(e) footprints; 

(f) a photograph of the person's identifying features; Examples for paragraph (f)— 1 photographs of scars or tattoos; 2 photographs of the person 

(g) a measurement of any part of the person's body, other than the person's genital or anal area, buttocks or, for a female, breasts.

Shaming, Naming, Claiming and Inking

''Naming and Shaming' in Western Australia: Prohibited Behaviour Orders, Publicity and the Decline of Youth Anonymity'' by Thomas Cofts and Normann Witzleb in (2011) 35(1) Criminal Law Journal 34 comments that

The Western Australian Parliament has passed the Prohibited Behaviour Order Act 2010. This Act enables a court to prohibit a person aged 16 years or over who has been convicted of an offense with an anti-social element from engaging in otherwise lawful behaviour that the court regards likely to increase the chances that the person will commit a further such offense. The Act provides that details of the person and the order will be posted on a departmental website even in the case of the young and that anyone is free to republish that information. This paper reviews the traditional stance of the law relating to publication of child offending before discussing the pros and cons of how prohibited behaviour orders will affect this position. ...

It is accepted that while publicity in relation to criminal proceedings is essential to ensure a fair and impartial justice system, the glare of publicity can also have negative effects for the subject of that publicity. In relation to adults these negative effects are accepted and generally thought to be deserved. However, it has historically been recognised that the young need protecting from publicity and therefore legal safeguards to ensure this protection is delivered are in place throughout Australia.

The PBOs in Western Australia will remove the right of the young to anonymity. The State government submits that this is necessary to ensure effective enforcement, deterrence and reassurance of the public. PBOs are modelled on a variant of the ASBO in the United Kingdom, for which publicity is likewise the norm. However, upon closer examination it is questionable whether making the community responsible for policing anti-social behaviour is effective at combating such behaviour and reassuring the community. Given the high rate at which similar orders in the United Kingdom are breached it remains unproven that the threat of publicity acts as an effective deterrent, in particular on young persons. Due to their immaturity and still-developing ability to control their impulses the young may either not appreciate the reality of the threat or may underestimate the future harm that may ensue from publicity. Some may even welcome the publicity as a badge of honour and value the immediate gratification of belonging to an “outside group”. Thus publicity may have the unintended consequence of cementing anti-social behaviour. Social exclusion of those labelled “anti-social” is also likely to occur where the community is made aware of “who in their midst has been responsible for such outrageous behaviour”. Strategies encouraging active citizenry to police anti-social behaviour operate on the basis of categorical suspicion. The young, and especially Aboriginal youth, are particularly susceptible to being demonised and labelled deviant; a process which is likely to be compounded by sensationalist reporting. This in turn can actually undermine public confidence in the authorities and increase, rather than decrease, the fear of criminal and anti-social behaviour, thus undermining one of the purposes of publicity.

The advantages of publicity in the case of a PBO do not outweigh the negative effects which may flow from publicity in the case of the young. However, there has been a rigid adherence in the United Kingdom to the belief that publicity is a necessary corollary to ASBOs. This belief has been accepted without question in Western Australia. This desire to publicise, even if the advantages thereof are disputed, may actually be part of a larger picture of a gradual shift away from the conviction that the young need protecting from publicity. The movement away from the welfarist approach to a justice model for dealing with young offenders is concomitant with the belief that the young should be held to take responsibility for their actions. Under this approach, young persons who persistently engage in anti-social behaviour are thought to no longer need protecting from publicity because they have already chosen to reject society’s norms. Such an argument fails to appreciate that anti-social behaviour is in many cases a normal part of growing up and will not necessarily lead to a criminal career. Labelling and shaming can compound any temporary rebelliousness and cement rather than help shift the young person away from such behaviour. 

This paper has not been concerned with efficacy of ASBOs or PBOs but merely with their effect on anonymity protection for young offenders. The aim was not therefore to argue here whether or not such orders are likely to be effective and should or should not have been introduced. The authors’ concern is that publicity should not be accepted without question as an essential part of a PBO in the case of the young. The right of the young to anonymity has been protected for good reasons which far outweigh any of the potential benefits of publicity. Publicity is likely to have damaging effects on the young and on society by encouraging suspicion in the community, progressing social exclusion and the fear of crime. It is therefore urged that the right of the young to anonymity be protected and that there be a presumption against publication in the case of minors.

Another perspective on anonymity and registration is provided in the speech by Raymond Stevens MP, Member for Mermaid Beach in the Queensland Parliament.

Endorsing the Criminal Proceeds Confiscation (Unexplained Wealth and Serious Drug Offender Confiscation Order) Amendment Bill 2013 (Qld) Mr Stevens states [PDF] that

My beloved region of the Gold Coast unfortunately seems to be a place where bikie gangs have infiltrated, with their clubhouses and headquarters making their homes in the region. While many do have legitimate businesses, the ones who are involved in illegal businesses are going to get caught. The proceeds from their criminal activities will be seized under these new laws. In a lot of these businesses dirty money is being cleaned through these front-door legal activities.

A recent story that has been in the media is of bikie gangs infiltrating the Victorian police force. Bikie gang members have been cultivating, compromising and corrupting police officers. They have been offering police officers access to strip clubs and drug related activities. They will do anything and stop at nothing to continue their illegal activity. The speed and accessibility of this sort of corruption which is causing a lot of damage is immense and usually drug related. These networks infiltrate legitimate areas of business to corrupt for their own gain. They hide behind legitimate businesses, such as gymnasiums, where there is a lot of drug and steroid use. I think peptides are the latest ones they are all promoting. ...

Tattoo parlours are very much a focus for this bikie gang behaviour. There is no doubt in my mind that these tattoo parlours that have popped up all along the Gold Coast—and I am sure in the electorates of other members; there are plenty of heads nodding—are the way that bikie clubs clean their money. Once this bill becomes law the Attorney-General will be able to pursue those ill-gotten gains. I have a suggestion in relation to tattoos that the health minister might look at. Under the Health Act there should be a register of people getting tattoos so that we can identify those people getting tattoos rather than have John Smith, Bill Brown and all the other fake names of people who are paying $5,000 or $10,000 for tattoos. This is a way for these bikie clubs to clean their money.

Next stop barcodes on bikie btms (and those of barristers, bogans and anyone else getting inked)?

In Western Australia the Government has introduced the Criminal Investigation (Identifying People) Amendment Bill 2013 [here], touted as requiring Muslim women to remove a burqa or niqab to prove their identity to WA. The amendment aims to require "a person to remove headwear or do other things to facilitate the officer being able to confirm a person's identity", with police gaining explicit powers to detain the person pending compliance.The requirement will apply to an item of clothing, hat, helmet, mask, sunglasses or "any other thing worn by a person that totally or partially covers the person's head".

Enthusiasts have called for a comprehensive ban on the burqa, unlikely to be constitutional. 'Section 116 of the Australian Constitution and Dress Restrictions' by Anthony Gray in (2011) 16(2) Deakin Law Review 293 for example comments

In this article, I will consider constitutional (and discrimination) issues that would arise if an Australian parliament enacted legislation with the effect, amongst other things, of prohibiting the wearing of particular items of clothing often thought to have religious significance, in particular the hijab, burqa or niqab. While the ban could apply to other items of clothing or jewellery of significance in religions other than Islam, given that most of the current debate concerns symbols of Islam, I will use this particular context as the focus of discussion. In so doing, I will draw briefly upon the rich jurisprudence concerning these issues in other jurisdictions, where much more litigation has taken place regarding the question than in Australia. I will also consider briefly whether a different result would apply if the ban were passed at state level. This is not an abstract argument; a current Senator in the Australian parliament has personally called for a burqa ban, and private members’ bills have been introduced in New South Wales and South Australia to introduce such a ban, at least in some circumstances.

In Part II I set the statutory framework for the discussion that follows. In Part III the meaning of the wearing of the hijab and burqa is considered. Part IV considers how laws banning the wearing of religious dress or symbols have been considered in various courts. In Part V I consider the validity of a Commonwealth law that had the effect of banning the wearing of some religious dress or symbols. ...

If the Commonwealth Government passed a law (otherwise constitutional) banning the wearing of religious dress or symbols, the High Court should read the principle of religious freedom in section 116 broadly. It should not validate a law just because the Commonwealth argues the law was passed for other (legitimate) purposes; in some cases, it is submitted courts in other jurisdictions have been too willing to accept at face value government arguments that bans on religious dress or symbols were necessary in pursuit of legitimate objectives of equality and neutrality, or that effects on religious freedoms were incidental (and so not considered to be objectionable). While the precise meaning of the wearing of items such as the hijab or burqa is open to interpretation, on at least some interpretations such wearing is supported by the Qur’an; it is highly contentious to extrapolate from the wearing of such items of clothing that oppression, subjugation or ‘extremism’ is being reflected.

Such a ban might also infringe the Racial Discrimination Act 1975 (Cth); for a Commonwealth law, this is not significant since the Commonwealth can amend its own legislation; in relation to a state law which purported to implement a ban, the court would have to consider directly whether Islam followers are an ‘ethnic group’ within the meaning of the Act; and then whether a blanket state ban on all face covering would be inconsistent with the RDA, in particular section 10. There is a strong argument that Muslim followers do comprise an ethnic group, and that section 10 might be used to invalidate a state attempt to ban face covering, given given its effect on those of Muslim ‘ethnicity’, compared with other ethnicities

That is consistent with works such as 'Can and Should Burqas Be Banned? - The Legality and Desirability of Bans of the Full Veil in Europe and Australia' by Anne Hewitt and Cornelia Koch in (2011) 36(1) Alternative Law Journal 16 and 'The Full Face Covering Debate: An Australian Perspective' by Renae Barker in (2012) 36(1) University of Western Australia Law Review.

Inked

Mermaid Beach (Queensland) MP Ray Stevens is reported to have come up with one of this year's most amusing proposals for crime control. Let's have a state-wide register - it's unclear whether it's to be online - of tattooed Queenslanders!

People with ink would reportedly have to register their tattoos with the Qld State Government as part of Stevens' plan to crack down on 'bikie gang money-laundering operations'. If reports are to be believed, the tattoos rather than the parlours are to the subject of registration.

According to one report the MP considers that

bikie gangs were using tattoo parlours as a front to launder their ill-gotten gains, and a form of tattoo register would stop them using fake names and inflated tattoo prices to do this.

Mr Stevens said fake names were used at bikie-affiliated parlours, with cash payments of thousands of dollars for bogus tattoo work.

"Under the Health Act there should be a register of people getting tattoos so that we can identify those people getting tattoos rather than have John Smith, Bill Brown and all the other fake names of people who are paying $5000 or $10,000 for tattoos. This is a way for these bikie clubs to clean their money," he said. "Considering the number of bikies and tattoo parlours I've seen in my area, considering the shootings in my area, I think it's a very worthwhile exercise to look into tattoo parlours and health activities associated with them."

Mr Stevens said the proposal could work with people required to give their name and identification to parlours when getting a tattoo with that information passed on to the Government register. Similar restrictions are used for the sale of cold and flu medication containing phenylephrine, which is targeted by criminals because it is an ingredient in making speed.

One immediate thought is that the parlours - supposedly run by crims - would be expected to contribute to a register that would demonstrate that criminal activity is taking place.

Let's not think about inconveniences such as verification or privacy.

Queensland Council for Civil Liberties spokesman Terry O'Gorman unsurprisingly is reported as commenting that the proposal is

a naive and extreme approach. "To require everyone who gets a tat to be registered is to require a huge number of the population who want it as a fashion statement to go on what would effectively be a criminal register," he said.

He said there was already a Federal Government body, Australian Transactions Reports and Analysis Centre, or AUSTRAC, which used high-tech means to investigate alleged money laundering, while if police had legitimate information to suggest a tattoo parlour was being used for laundering they would easily be able to get a phone tap and listening devices in place.

Ink

Two perspectives on intellectual property ...

'When Tigers Bare Teeth: A Qualitative Study of University Patent Enforcement' by Jacob Rooksby in 46 Akron Law Review (2013) comments that

University participation as plaintiffs in patent infringement litigation is an understudied phenomenon within a postsecondary terrain increasingly influenced by academic capitalist approaches to intellectual property protection and dissemination. This article presents findings from an exploratory, qualitative study of senior-level technology transfer professionals at five public universities with recent experience asserting university-owned patents in patent infringement lawsuits. Findings reveal a complex set of considerations that influence university decisions about patent enforcement, including infringer identity, concerns for litigation finance, and the licensing typology of the asserted patent. Additionally, findings suggest a complicated and close relationship between mission and money in university pursuits of patent infringers

After noting an interviewee's comment that

A patent without enforcement is a piece of paper with Dave Kappos’s signature on it. That’s all it is, you know. It’s a very expensive piece of paper. I can get Dave Kappos’s signature for a lot less than $30,000. ... If you’re not willing to enforce it, that’s all you’ve got

Rooksby concludes -

The study described in this article was driven by an interest in building understanding of university patent enforcement from the perspective of key decision-makers at universities recently involved as plaintiffs in patent infringement lawsuits. Points of inquiry included probing participants for the main factors or constraints their universities consider in determining whether to enforce their patents through infringement litigation, as well as gaining insight into institutional balancing of revenue generation and allegiance to university research mission through the pursuit of patent infringement litigation. 

Findings suggest that some universities view participation as plaintiffs in patent infringement litigation as condoned or even mandated by their research and commercialization missions, despite what some critics view as the activity’s incompatibility with the notion of a university’s public-serving mission. On a practical level, revenue generation is often a principal motivator for universities that choose to enforce their patents through infringement litigation, even though industry literature only indirectly references litigation’s revenue-generating potential. In this regard, when it comes to enforcing patents, universities’ research goals and revenue-generating goals seem deeply if not inextricably intertwined. The high cost of legal fees, as well as concern for being viewed as overly litigious (troll-like), may provide disincentives for some universities contemplating pursuit of patent infringers. While contingency fee arrangements with outside law firms can help universities counter the high cost of enforcing their patents in court, reputational risks related to these arrangements may deter their use. Additionally, the identity of would-be defendants may cause some institutions to abandon pursuit of their infringement claims out of concern for retribution to the university, particularly with respect to sponsored research funding. 

The nature of the infringed patent (i.e., whether it is exclusively licensed, non-exclusively licensed, or unlicensed) can impact decision- making as well. Concern for the responsibility and costs of litigating non- exclusively licensed patents may lead some institutions to favor an exclusive licensing strategy for their patents, on the belief that doing so will save them money and may even spare their involvement as a plaintiff in any infringement action. Although many universities may be hesitant to litigate unlicensed patents, shrewd companies have devised a way for them to turn unlicensed patents into putatively licensed ones, thereby contravening the Bayh-Dole Act’s purposes and masking the character of what some may view as speculative enforcement activity. 

Several participants noted that universities as a group tend to avoid discussion of patent infringement litigation as an aspect of technology transfer. As Simon described it, “It’s one of those things we don’t like to talk about. We like to talk about patents and licensing. But we don’t like to talk a lot about [litigation].” Examining university patent enforcement may be uncomfortable for some universities and policymakers, but overlooking the phenomenon only undermines comprehension of the net effects of university involvement in technology transfer. 

While quantitative data are growing, the study described here is the first dedicated qualitative attempt to build understanding of the nuanced factors that impact university decisions concerning patent enforcement. Its findings should encourage decision-makers at universities heavily engaged in patenting and technology transfer (as well as those just beginning to build capacity in these areas) to critically examine institutional goals and dispositions to use patent infringement litigation to protect and enhance university research missions in the public interest. In short, universities must confront a difficult but inescapable question: When it comes to enforcing our patents, will our university be a tiger with teeth?

'Intellectual Property Norms in the Tattoo Industry' by Aaron Perzanowski 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.

Bad Ink

As a fan of Written on the Body: The Tattoo in European and American History (Princeton Uni Press, 2000) edited by Jane Caplan and Bad Boys & Tough Tattoos: a social history of the tattoo with gangs, sailors, and street-corner punks, 1950-1965 (Haworth, 1990) by Samuel Steward I was interested to see the Nicholas Weston Trade Mark Blog's report on that firm's annual survey of bad ink, ie people decorating their bodies with trade marks rather than the usual hearts, anchors, names of one-time partners or signifiers that they are members of the Crips, Yakuza, Mongrel Mob or other nasties.

Of those receiving a tattoo, only around 2–5% receive a brand tattoo, and predominantly in the 18 – 25 age group. ... Tattooists [reported] that brand tattoos were obtained on impulse in some cases and as a carefully considered choice in others.

The Blog drily notes that

Opinion among tattooists was divided on whether the choice of brand-tattoo reflected its culturally iconic status or the recipient's faith in the brand. One tattooist opined that "it is a humour thing." One tattooee received payment to have toilet rolls of a certain brand inked onto his backside but otherwise the overwhelming majority were not paid to become human billboards. All of those surveyed denied that any recipients of a brand tattoo were visibly drunk or affected by drugs at the time.

In responding to the question "So What" Weston indicates that

Most well known brands and logos are registered trade marks. Use of a registered trade mark as a tattoo is generally not "use as a trade mark” by using the sign in the course of trade for the purposes of s 120 of the Trade Marks Act 1995 (Cth).

'Ads by Google' (ah, the joys, the joys of predictive marketing) has helpfully displayed an ad for an online ink service "7000 free tattoos for every body ... design your dream tattoo online" - presumably useful for clip art kids of various ages or those whose affiliations are a bit outside having a brand of toilet paper inked on their btm or bit of colour on the membrum virile. (I'm not going to take up one site's offer of "Genital Tribal Tattoos With Mermaids" ... and not just because the mermaids are so not me or because I'm persuaded by Christian Klesse's critique 'Modern Primitivism': Non-Mainstream Body Modification and Racialized Representation' in 5(2) Body & Society (1999) 15-38. Klesse argues that the philosophy underpinning the non-mainstream body modification practices of 'Modern Primitives'

seeks inspiration in the body modification techniques and bodily rituals of so-called 'primitive societies'. Establishing their prioritization of body, sexuality, community and spirituality as analytical links, the author shows that these self-perceived radical opponents of Western modernity nonetheless remain captured in its foundational discursive assumptions. The author argues that the movement's enthusiastic turn towards 'primitivism' represents a particular identity strategy within the late modern condition. Drawing on colonial discourse analysis, the author argues that the primitivist discourse originated as an ideology within colonialism and has informed the construction of the Western self-image. Modern Primitives' notion of 'primitivism' is seen as a postcolonial legacy of this tradition of 'othering', which inevitably reproduces stereotypes of racialized people.

Another perspective is offered by Christine Braunberger's article 'Sutures of Ink: National (Dis)Identification and the Seaman's Tattoo' in 31 Genders (2000)

Seamen (merchant and military) acted as the primary hosts for the tattoo's immigration from East to West. Concurrently, they altered the symbolic valence of tattoos in America from carnival freak show exoticism to an ambivalent marginal signifier of militarism and national fantasy. In tracing these shifts, I will argue that the tattoo's meaning was fluid across and within the various groups who utilized the form and thus erased stable readings while marking unstable possibilities. I will therefore contend that for the military itself, the tattoo functioned to simultaneously transgress and maintain militaristic interpellation. For the seamen, the tattoo fetishistically marked a desire to perform a phallic masculinity and the anxiety of what such a performance might mean. As an object which is not an object and hence always and never really "there," the tattoo destabilized the military's heterosexuality, functioning to both access an experiential homosexual eroticism and refuse acknowledgment of that access by symbolically representing a stable heterosexual "manhood." For the American public, the tattoo spoke of exoticism and eroticism that was "troubling," but could be subsumed under the banner of a positive national symbolic. The tattoo functioned as a fetish object for national anxiety which affects, and is affected by, the individual military body's various relational positions, but especially by those Others outside the borders.

Gang identity

Timaru in New Zealand has announced that it will ban gang insignia if the Wanganui 'gang patch law' is upheld in court. Earlier this year the New Zealand Parliament passed the Wanganui District Council (Prohibition of Gang Insignia) Act 2009 [here], in effect from 9 May 2009, to "prohibit the display of gang insignia in specified places in the district". 

 The Act empowers the Wanganui District Council - consistent with the Local Government Act 2002 (NZ) - to make bylaws designating "specified places or gangs" if those bylaws are

reasonably necessary in order to prevent or reduce the likelihood of intimidation or harassment of members of the public in a specified place or to avoid or reduce the potential for confrontation by or between gangs.

S 12(3) of the Act provides that "without limitation, and to avoid doubt", a judge may apply s 128 of the Evidence Act 2006 (NZ) in "deciding whether a sign, symbol, or representation is gang insignia" for the purposes of the statute, an echo of the Ugandan regime and US dress codes noted recently in this blog. The Act authorises a constable to search a vehicle to locate a person referred to under that statute, search the vehicle to locate gang insignia (which may be seized and destroyed), require any person in or on the vehicle to state his or her name, address, and date of birth, and require the vehicle to remain stopped for as long as is reasonably necessary to exercise the powers. Potential conflict with the NZ Bill of Rights Act 1990 (NZ) was highlighted in the 2008 report [PDF] by the Parliament's Law and Order Committee. 

 The first bylaw was duly passed by the Council on 1 September and came into effect at midnight, giving the NZ police the power to fine patch-wearers NZ$2,000 and take possession of the insignia. The first arrest under the bylaw has taken place. Timaru Mayor Janie Annear reportedly told Radio New Zealand her city did not have a gang problem (and was presumably quite safe for people in search of hobbits) but would be "pro-active" and emulate Wanganui. The Wanganui council was dismissive of a submission from the Hells Angels, which claimed that those Harley fans are not a gang and should instead be excluded from the bylaw because they are a club. A Wanganui Council representative commented that the NZ Parliament and police had determined the Hells Angels were a gang, going on to explain that "Our bylaw simply demarcates the boundaries where gang patches, gang colours and gang insignia will be banned". The Law & Order Committee report stated that

It is important that the definition of gang insignia be kept broad to allow for possible rebranding of gangs. However, we consider that this amendment would provide a useful limitation on the insignia that could be captured by the prohibition. We considered recommending amending the bill so that tattoos would not be captured by this legislation. However, a majority of us (New Zealand Labour and New Zealand First) are concerned that this might cause an increase in the use of tattoos by gang members to intimidate the public. We do not consider that every tattoo should be covered by this legislation; it should capture only those that denote membership of, affiliation with, or support for a gang.

Chester Borrows MP, in the first reading speech for the Act, acknowledged concerns about tattoos but claimed that

Gang members have raped, murdered, beaten, and stolen in gang regalia with no hesitation, and they have shown no remorse. When gang members express regret for offending, it is always because they were apprehended or because of the effect the offending has had on their own families. There is never regret about the impact on the victims. They regret time in jail and wasted opportunities, but never the damage they have done to others. In fact, the opposite is true. It is their behaviour — giving the television camera the fingers, sneering, swearing, and barking — and their offending that has instilled reasonable fear in the minds of average Kiwis, and to deny that these fears are reasonable shows a lack of acknowledgment of the legitimacy of those fears. Time and time again we seek to encourage communities to take responsibility for offending by their community members. ... This bill came about part-way through an 18-month campaign of gang violence involving stabbings, beatings, drive-by shootings, and attacks in the streets and suburbs and the CBD of Wanganui. People were intimidated by the sight of gang members who were patched and in close proximity. To minimise this quite reasonable response to 18 months of violence, which culminated in the death of an innocent 2-year-old, and to try to segregate responsibility or sectionalise the right to intervene, is not a helpful stance in dealing with what is a generic gang problem.