"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:
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.]
Looks like The Hangover 2 continues to suffer some bad tattoo juju. First, the controversy surrounding who would play the small role of tattoo artist in the film. And now, the tattoo design itself.
Victor Whitmill, who did Mike Tyson's infamous facial tattoo in 2003, is suing Warner Bros. for copyright infringement in pirating his tattoo design "without attempting to contact [him], obtain his permission, or credit his creation"; he seeks damages and an injunction to stop the use of the tattoo in the film--which is essentially a big part of the movie. In The Hangover 2, a bachelor party once again leaves our wacky heroes with no clue of what happened the night before, except for a facial tattoo on the groom Stu (Ed Helms). There's also a monkey. See the trailer below.
Looks pretty funny but the legal claims are quite serious. [Download the complaint here.]
Tattoos. Copyright. The media is loving it. But in so many discussions of the case, there's a great deal of misinformation, so I'd like to break it down as best as I can.
First, when I wrote "The Tattoo Copyright Controversy for BMEzine in 2003, I approached it like a law school hypothetical; that is, I played with how intellectual property rules would apply in various potential disputes involving the ownership of a custom tattoo design. It was hypothetical because, at the time, no actual cases on record could be found specifically addressing this issue. Well, a lot has changed since 2003. Tattoo artists have sued companies for infringement and a number have received large settlements. Even collectors, like model & photographer Amina Munster [NSFW], have registered their tattoos with the US Copyright Office to discourage other collectors from copying.
The basics behind "The Tattoo Copyright Controversy still hold in addressing what exactly is copyright and its relation to tattoos. A couple of years later, I updated the article for Rankmytattoos.com and continued to post developments on my old Needled.com blog. So click these article links for more of a general discussion.
In this post, I'm going to break down the tattoo copyright issues in relation to Whitmill v. Warner Bros. Entertainment Inc., (E.D. Missouri), what I'll call:
The Mike Tyson Tattoo Copyright Case 101...