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November 12, 2011
Tattoos as Speech
A bit ago I poked at the issues surrounding the copyrightability of tattoos. One possibility is that a tattoo is a purely expressive design element, which might appropriately be covered by something like a design patent or a copyright; though, as I blogged last time, there are a raft of unanswered questions as to how that IP protection would be read. In addition to artistic design, tattoos can do much more : they can contain messages as words, and they can convey messages by their choices of symbols, images, or even colors. The question then naturally follows: is a tattoo a form of speech?
According to the decision in Coleman v City of Mesa, yes. However, as Eugene Volokh notes, this decision follows Ninth Circuit precedent, which SCOTUS loves to overturn, and disagrees with decisions in other states/circuits. Should someone decide the case is important enough I could see one of these arguments going all the way to the Supreme Court.
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