Mike Tyson’s Facial Tattoo Infringed by Hangover 2?

May 23rd, 2011 by Staff

http://musiclawseminar.com – If you’re like me, you love the Warner Bros. movie The Hangover (2009) featuring Mike Tyson, his facial tattoo, and his Bengal tiger. Also, you can’t wait to see this summer’s Hangover 2, which, according to an official movie poster, appears to feature Mike Tyson’s facial tattoo on character Stu Price’s face (played by actor Ed Helms).

Victor Whitmill, the tattoo artist who created the distinctive original design on the former heavyweight champion of the world, has sued Warner Bros. alleging copyright infringement. (original complaint is below; Whitmill also moved for a preliminary injunction, which is provided below) As someone with (relatively speaking) an extensive collection of tattoos, I’m becoming more fascinated with this case than the upcoming sequel.

Whitmill tattooed Tyson in a Las Vegas tattoo parlor in February, 2003. As is typical when getting a tattoo, Tyson signed a Release (produced below). The second to last item listed in the Release states “I understand that all artwork, sketches and drawings related to my tattoo and any photographs of my tattoo are property of Paradox-Studio of Dermagraphics.” (Whitmill alleges that he was doing business under the name Paradox at the time).

According to the Copyright Certificate (produced below), Whitmill didn’t file for registration until April, 2011, far after the five-year window in §410(c) of the Copyright Act that provides for prima facie evidence of validity.

Warner Bros. has not answered the complaint, so we’ll have to wait and see what their defense(s) are. We can bet fair use will be one of them.

A more intriguing defense might be to challenge Whitmill’s ownership of the copyright itself. As I noted above, I’ve got quite a few tattoos, so I’ve spent a lot of time in tattoo parlors. I’ve also signed a number of releases. One might accurately describe these as adhesion contracts, as I’ve never seen someone negotiate the terms of the release. I’m also not sure Tyson would likely understand the import of what he was signing (as it relates to the “ownership” of the image on his face) and such contracts should be read against the drafter where ambiguous. One could certainly make a case that someone getting a tattoo believes at the time that he/she has paid the tattoo artist, in part, for the exclusive ownership of the resulting tattoo, whether by assignment, transfer or work-made-for-hire (but see below).

As Whitmill is making derivative works arguments under §106A with respect to Warner Bros. use of this image, it is theoretically possible that Whitmill could claim that Tyson himself could not alter the tattoo on his own face without implicating Whitman’s copyright; i.e., Tyson might decide he wants to have some or all of the tattoo removed and/or covered up with a different design.

Its hard to see how a tattoo would fit into the definition of Works Made for Hire, since the tattoo artist isn’t likely to be characterized as an employee and the tattoo doesn’t fit neatly into any one of the enumerated categories of qualifying works.

There is another whole layer of Tyson’s rights of publicity potentially implicated, though Warner Bros. probably secured Tyson’s permission.

This case has “settle” written all over it. Part of me hopes it doesn’t, as I’d enjoy seeing how these legal issues get resolved by the courts.

The Original Complaint is Here:
Whitmill v Warner Bros (Tyson Tattoo Case)

Tyson’s Signed Release is Here:
Whitmill v Warner Bros (Tyson Tattoo Case) (Release)

The Copyright Registration is Here:
Whitmill v Warner Bros (Tyson Tattoo Case) (Copyright Registration)

The Motion for Preliminary Injunction is Here:
Whitmill v Warner Bros (Tyson Tattoo Case) (Motion for PI)

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