The Hangover 2: Did they go a tattoo far?

Last week brought good news for Hangover 2 fans -- the movie premiered over the weekend as scheduled, despite the copyright infringement lawsuit recently filed against Warner Brother Entertainment by tattoo artist S. Victor Whitmill (Complaint found here via Wired). Along with the lawsuit, Mr.Whitmill sought an injunction to prevent the release of the motion picture.

Mr. Whitmill is a tattoo artist located out of St. Louis, Missouri, whose most notable work is the design tattooed on the face of Mike Tyson. Whitmill obtained a copyright registration for a tattoo design for a tribal design on April 19, 2011.

Mike Tyson appears in The Hangover 2 but it is not the tattooed image on his face that Whitmill is seeking to enjoin but the replication on Ed Helms' character Stu.

I have not yet seen the movie, but in the trailer for The Hangover 2, it appears that Stu wakes up after a night of partying with a tribal tattoo similar in nature to the one that appears on Mike Tyson’s face. The tattoo is also featured in most of the print advertising for the film.

According to his complaint, Whitmill owns the rights to the image based on an agreement that was signed at the time Tyson obtained the tattoo. One of the terms of the agreement (a standard tattoo release form) is that the artwork belongs to the artist, not the person who recieves the tattoo. Whitmill alleges that as the owner of the copyright, he has exclusive rights to copy, distribute and publically display the tattoo. (Obviously, it would be difficult for Whitmill to try enforce any rights in the tattoo as it appears on Tyson’s face. One reason is because Tyson is the owner of the particular copy and has the right to display the work. Second, on some level there must be an implied license that the tattoo artist agreed to by placing his work on Tyson’s face. Otherwise, any photograph of Tyson could be considered an unlawful reproduction.)

In its Answer, Warner Brothers argued that there is no copyrightable expression in the tattoo as the design is not sufficiently original or creative, and that tattoos on skin are not copyrightable. Warner Brothers also hired David Nimmer to provide a declaration in support of the lack of copyrightablity.

Even if the Court does decide that Mr. Whitmill does indeed own the copyright to the tattoo, there are still a number of issues that will need to be decided any ruling on infringement can be made.