Tattoo Copyright -- UPDATE
02:27 PM
hangover tattoo.jpg
"Of course tattoos can be copyrighted" -- Judge Catherine D. Perry

Three weeks ago, I wrote about the tattoo copyright controversy over Mike Tyson's facial tattoo and its use in The Hangover Part II film. As I noted in that post, Victor Whitmill, who did Tyson's tattoo in 2003, is suing Warner Bros. for copyright infringement in pirating his tattoo design in the film and using it in its ubiquitous promotion campaign. He filed suit seeking damages and asking the court to issue an injunction to stop the use of the tattoo in the film, thus barring the film's release this Memorial Day weekend.

According to the NY Times Media Decoder blog, on Tuesday, Judge Catherine D. Perry of Federal District Court in St. Louis did not grant the injunction, stating that the harm to the public interest -- businesses beyond Warner Bros that would lose money if the film were not released on schedule -- outweighs the harm to the tattooist. However, the case doesn't end here as the NY Times reports:

But even as Judge Catherine D. Perry of Federal District Court in St. Louis gave an important victory to Warner Brothers Entertainment, the studio that is releasing "Hangover Part II," she made clear that her sympathies were entirely on the side of the artist, S. Victor Whitmill.

She said that Mr. Whitmill had a "strong likelihood of prevailing on the merits for copyright infringement" and that most of the arguments put forward by Warner Bros. were "just silly."

Those silly claims include the assertion that tattoos do not have any copyright protection. Warner Bros. pulled out the big guns by having copyright specialist Professor David Nimmer attest that the body is not "a tangible medium of expression," among other arguments including "involuntary servitude." Read Nimmer's declaration in support of Warner Bros. here. It's a departure from Nimmer's original assertion in his treatise on copyright that tattoos are protected under the law. This flip flop did not go unnoticed.

With regard to Warner Bros.'s parody defense, the NY Times quotes Judge Perry:  "This use of the tattoo did not comment on the artist's work or have any critical bearing on the original composition. There was no change to this tattoo or any parody of the tattoo itself. Any other facial tattoo would have worked as well to serve the plot device."  [Some experts like Professor Eric Goldman disagree with the last sentence.]

What most experts do agree on is that this is not a frivolous case and Whitman could receive a big settlement.

Read my original post for the breakdown of issues surrounding this case.

I'd like like to add one more thing:  This isn't a case about a tribal tattoo. It is about protection of works by tattooists. It may not stop companies from ripping off artists (especially apparel companies who are notorious for stealing tattoo designs), but big settlements may make them think twice about continuing to do so.

[Thanks to Benjamin for the Nimmer links.]


This article is not intended as legal advice. It is intended for only general information purposes. This article does not create any attorney-client relationship.

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