Call it my obsession, but I've been following the Mike Tyson tattoo copyright (almost as intensely as Beyonce's career) because of its potential impact on the rights of tattooists to defend their art from others who wish to profit from it.
For background, see my first post on it (with some general copyright info) here and the update here.
This post looks like my final update on the case because, yesterday, The Hollywood Reporter published the news that a settlement had been reached between Missouri tattooist, S. Victor Whitmill, and Warner Bros. Whitmill sued Warner Bros. for copyright infringement over its use of his facial tattoo design for Mike Tyson, which was prominent in The Hangover II film. The article stated:
The settlement was no surprise. As I predicted in my posts, these type of cases do tend to settle, and it was pretty clear that Warner Bros. would throw Whitman some money after the judge hearing the case had said that 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."
While I'm happy that tattoo artists' rights to their designs were recognized, the tattoo law nerd in me wished that this case had been decided to finally see how the courts would rule on the issue.
Again, I fully believe in a balancing of these rights between client and artist -- or have those rights hammered out in advance between them, especially with celebrities -- but in this case, Tyson himself was not at issue. It was Warner Bros. use of the design in the films, ads, and to-be-released DVD.
Will post a link to this post soon on our Facebook page to get your thoughts.
"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...
Tattoo by Gene Coffey stolen from TattooNow.com's Tattoo of the Day.
Beautiful walking works of tattoo art, like ya fine selves, are becoming a tattoo majority, and yet, those who pollute the tattoo gene pool make the big headlines. Sheesh. It wasn't a pretty week for tattoo folk in the news thanks to rabid sports fans, Nazis, and of course, Stephen Baldwin.
Let's begin our review with the burning post-Super Bowl question: What's the ColtsSkinDeep dude feeling like this morning, and will all those autograph tattoos be covered by better memories of yesterday like Betty White/Abe Vigoda portraits or the
Even the Tongan ancestral tattoos of Colts' Fili Moala could not bring the mojo for the team.
While there were plenty of stories on Super Bowl tattoos (even videos), one rebel reporter wrote a feauture on those who prefer the pain of a new tattoo over the Cheetos and beer halftime heartburn. Score!
Indeed, sports tattoos are generally not credited in the evolution of fine art tattooing, but at least they don't further stigmatize the tattooed as criminals like these jackasses:
A Nazi firebombed a tattoo studio in Monterey because they refused his tattoo request: a swastika and an image of President Obama overlaid with crosshairs. He faces seven years in prison for this and another torching.
An upstate NY tattooist was arrested after being found via his social network posts; cops further punked him by leaving this note on his Facebook wall: "Just a quick thank you for giving us your current employer's name and address. Without the help from you and your friends, your arrest would not have been possible. Special thanks for the excellent photos you provided for the U.S. Marshals. Without the help of criminals such as yourself, our job would be much more difficult."
Yet another criminal, this one with a tattoo that reads "Why Try" across his head, is astounded that he was identified (and arrested) for choking a 72-year-old man in a carjacking.
Beyond the criminals, tattoo stereotypes will remain as long as people with bad taste continue to get them. You'd think a bastardized Ed Hardy design tee would be enough, but some need to take their gift of gauche to the next level.
That level being a pornographic Mario Bros tattoo.
Such mistakes can be left behind when we pass -- an upside of death! -- but not for some who wish to enshrine their decorated skin, or at least try to like this dude:
A New Zealand man requested his tattoos be preserved upon his death but because the guy who handles this stuff was on vacation, the body was cremated instead, tattooed skin and all. The family is considering suit over the lost tattoo collection, which includes a Playboy bunny, Aries and Taurus signs, and a DB Export beer logo -- tattoos fiercely mocked by someone other than myself.
And then there are ... sigh ...
... Tattoo. Removal.
I promise to remove such ugly thoughts by focusing on top tattoo work this week like the image above by Gene Coffey stolen from TattooNow.com's Tattoo of the Day.