Copyright for Tyson’s Face

Did you love The Hangover and are you desperately waiting for The Hangover: Part II to come out in a few weeks?  Well, a tattoo artist is trying to stymie your anticipation by preventing its release!  In The Hangover: Part II, Ed Helms’ character gets a tattoo on his face nearly identical to the one Mike Tyson has, and Victor Whitmill, the man who tattooed Tyson’s face several years ago, has sued Warner Bros. for copyright infringement.

There are already some misconceptions floating around the net about who can sue, what they can sue for, and what the defenses are.  A few issues:

Is copyright even involved?

Copyright protects original works of authorship fixed in a tangible medium of expression.  Pieces of art are usually written on paper, preserved with sound recordings, or set down in film.  A tattoo applied to the skin is sufficiently permanently recorded so that it can be perceived, and as long as the tattoo contains a minimal level of creativity, it would qualify for copyright protection.  Certainly Tyson’s tribal tattoo has creativity to it.  Copyright exists.

So who owns the copyright?

Copyright ownership vests first to the author, but can be transferred by assignment.  Whitmill created the work and thus initially owned the copyright (unless it was a work made for hire), and he apparently had Tyson sign a release recognizing that ownership interest.  (Let’s question the intelligence of essentially giving (or not reserving) control of a piece of your body over to someone else.  I would love to see the release and whether it includes any exceptions for Tyson’s own display of his face tattoo.  But more on Tyson’s specific tattoo later).  Whitmill registered the copyright less than a month ago, no doubt as a precursor to this litigation.  Without the copyright registration, he wouldn’t be allowed to bring a federal lawsuit.

What rights can be asserted?

Copyright gives the owner a number of exclusive rights, but generally it allows the owner to prevent anyone from reproducing, displaying, distributing, or preparing derivative works of the original work.  It is possible here that Whitmill could have contracted away some of his rights in his agreement with Tyson.  But presumably, that deal would be between himself and Tyson and thus wouldn’t exempt conduct by third parties.  Ed Helms’ character’s tattoo implicates at least the derivative works right and more likely the reproduction right.  I can’t really see anything more than a trivial variation between the two tattoos; the tattoos bear much, much more than a substantial similarity with each other.  It would be incredibly difficult to argue that the second tattoo has any degree of originality.

Is there infringement?

The copying is so close here, it would be almost impossible to pass a straight-face test in an argument of no infringement.  Clearly, Warner Bros. knew of the Tyson tattoo (he did appear in the first film, after all), and the second tattoo is essentially a replica.  The similarities between the two tattoos are so exact that your mind instantly thinks of Mike Tyson when you see Ed Helms’ tattoo.  If the case gets to court, which it almost certainly won’t, I have no doubt that this point would simply be stipulated.

Are there any defenses to infringement?

The fair use defense is where the argument really arises.  Fair use is a defense to copyright infringement that evaluates a number of factors, namely, the purpose and character of the use, the nature of the copyrighted work, the amount of substantiality of the work used, and a few others.  Most of these factors fall on the side of Whitmill.  The work is highly creative and it has been co-opted completely by Warner Bros.  The one argument Warner may have is that the use of the tattoo is a parody.  A parody must call recognition to the original work and must make some comment on it as well.  The parody doesn’t have to be successful – even if the parody isn’t very good at making its point, it may still be considered fair.  Obviously, there can be a lot of discussion about the comments that the movie is making about the tattoo or Tyson himself.  Until the movie comes out, though, we won’t know for sure what the commentary is, but there may be a strong argument here.

Nevertheless, this case is likely to settle out.  Whitmill has a pretty decent argument, and Warner Bros probably doesn’t want the movie to come out late.  An injunction request has been filed to halt the release of the movie, but a delay of the movie isn’t likely worth the cost of a quick settlement to Warner Bros.

The Takeaway from the Hangover: Applaud the tattoo artist here for being so forward-thinking in retaining his rights in the tattoo.  I’m not sure if releases like this are common at tattoo parlors, but I think they might be after this.

Oh, and why wasn’t there a suit for the first Hangover?  I have a few suspicions.  Copyright law includes a policy known as the first-sale doctrine.  Typically, a copyright owner is given the first chance to distribute his or her work publicly.  Once that first sale is made, however, the owner of the actual work (or the thing in which the work is inherent) can distribute it as he pleases.  It could certainly be arguable that once Tyson paid for the tattoo, he owned that particularly copy and could distribute it as he please.  Thus, it is possible that Tyson didn’t need any provisions in the tattoo agreement allowing him to use or display his face around town, and he could give permission to Warner Bros to reproduce the tattoo on his face in the first movie.