The tattoo artist who designed boxer Mike Tyson’s Maori-inspired face tattoo is suing Warner Brothers Entertainment for including a similar design on the face of one of the stars of “The Hangover Part II” without his permission. Although U.S. District Judge Catherine Perry has denied an injunction request to stop the release of the movie later this week, she also implied that the artist may still have a strong case for monetary damages.
S. Victor Whitmill asked a federal district court in Missouri to stop the image of actor Ed Helms’ face with the tattoo from being used in the film and on promotional posters. He is also asking for monetary damages for what the complaint calls “reckless copyright infringement.”
Whitmill claims that he holds the copyright for the tattoo and that he “has never been asked for permission for, and has never consented to, the use, reproduction or creation of a derivative work based on his original tattoo,” according to the complaint.
In its responsive brief, Warner Brothers counters that Whitmill’s claim is the first of its kind, a “radical claim that he is entitled, under the Coypright Act, to control the use of a tattoo that he created on the face of another human being.” The film studio maintains that the use of the tattoo falls in the “fair use” exception to copyright as it’s used as parody; Tyson appears in the first Hangover film, and the appearance of the tattoo recalls that — or, as The New York Times puts it, the tattoo becomes “part of the joke.”
A parody makes use of an original work in order to make fun of or comment on that work itself. In a claim of such fair use, the following four factors are considered:
- The purpose and character of the use.
- The nature of the copyrighted work.
- The amount and substantiality of the portion used.
- The effect on the market or potential market.
But the judge who is hearing this case doesn’t seem to be convinced that Warner Brothers’ fair use claim will hold up under the scrutiny of those factors. Indeed, according to a report by Yvette Joy Liebesman, an intellectual property professor at the Saint Louis University School of Law who attended the hearing:
The court made it clear that Warner Brother’s defenses to infringement were “silly,” and soundly rejected the defendant’s novel argument that tattoos are not protected by copyright, even if they had first been expressed on paper or another tangible medium of expression. Judge Perry briefly discussed the defense’s claim of Fair Use, opining that there was no parody or transformative use, the entire tattoo in its original form was used (not in any parody form), the tattoo was not necessary to the basic plot of the movie, and that Warner Brothers used the tattoo substantially in its marketing of the movie.
Notably, the court showed concern “with the Plaintiff’s loss of control over his design as irreparable harm.”
There may end up being a settlement in this case before it gets to a full trial, but it certainly does raise some interesting legal questions regarding tattoo copyrights.
Do you think the tattoo artist has a strong case?