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? 

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.