Hangover Lawsuit Update

Last month, Warner Bros. and S. Whitmill “amicably settled” the copyright dispute regarding the use of the tribal tattoo that appears on Mike Tyson’s face from being used on another character in The Hangover 2.  The details of the settlement were not disclosed.

Prior to reaching an agreement with Whitmill, Warner Brothers informed the Court that if it is unable to resolve the lawsuit involving the tribal tattoo on Ed Helms' character in The Hangover 2 (detailed in my previous post), that WB would take the step of altering the appearance of the tattoo on one of the character’s faces in the movie when it is released on DVD.  This apparently is an expensive alteration.  However, it may be less expensive than having to pay damages for infringement.  Obviously, if the reproduction of the tattoo were not longer to appear in the movie, then the claim for additional damages would be mitigated. 

An additional twist on this case is from David Nimmer who filed a declaration as an expert for Warner Brothers. The declaration can be seen in its entirety here.

Part of Nimmer’s argument is that the tattoo (and therefore, the copyrighted work) is not fixed in a tangible medium when the design was affixed to Tyson’s face.  There are several references to the history of the Copyright Act and failure to mention tattoos as part of the legislation.  But I think the analysis misses the overall structure and underlying purpose of the fixation of the work into a tangible medium.  Part of the purpose of the fixation was to ensure that the work was not fleeting.  While arguably, the tattoo may be able to be removed, it does nothing to change the analysis that the work is fixed.  The work was clearly capable of being drawn onto a piece of paper or a picture of the work as appeared on Tyson’s face would suffice to show how the work appeared.  It also raises a completely different question, because clearly Whitmill had to file a deposit of the copyright and could not have filed Mike Tyson’s face.  (I presume a photograph was submitted to the Copyright Office.)  Without getting into the merits of the level of protection that the tattoo should be provided under copyright law, it seems a rather flimsy argument to claim that the work is not fixed in tangible medium.  The photograph itself would show the tattoo artist’s rendering. 

The argument lacks credibility.  By analogy, if an artist drew sketches in pencil, would the drawing not be capable of copyright protection because the copyright registration indicated that the sketch was in pencil and was capable of being removed with an eraser?

Another argument pressed by WB and Nimmer is that there are no reported cases involving copyright infringement for tattoos.  (A case involving Rasheed Wallace was settled out of court – however, in that case, the tattoo involved was an actual tattoo on the person involved not a temporary reproduction on another person.)  There is a copyright infringement case involving temporary tattoos. See Gonzalez v. Kid Zone, Ltd., 2001 U.S. Dist. LEXIS 12008 (N.D. Ill. Aug. 14, 2001).

Because of the settlement we will have no way of knowing how the case would have turned out.  What do you think the Court would have decided?