Copyright Infringement: Hangover 2 and Mike Tyson Tattoo

Post date: May 4, 2011 3:42:36 PM

As many of you already know, The Hangover: Part II is going to be released in theaters soon. But what you may not know, however, is that the movie is in jeopardy of being delayed or not released at all because of this:

You can see the famous Mike Tyson face tattoo on the left and a shot from The Hangover 2 on the right. Notice anything? Yep, they've copied Mike Tyson's tattoo onto Ed Helms' character's face for some scene in the movie. I imagine it will be something along the lines of the character waking up from being really drunk/drugged with roofies ("floories") and realizes he now has a face tattoo. I'm sure it will be very funny.

Who doesn't think this will be funny, however, is the tattoo artist that created the original tattoo for Mike Tyson -- S. Victor Whitmill. Whitmill is apparently an award-winning tattoo artist and he knows his copyright laws. You see, Whitmill has sued Warner Bros. and has requested an injunction (basically asking for court to prevent the movie from being released) due to infringement of his copyright.

Legally speaking, I think he has a valid claim. Tattoos can be protected by copyrights just the same as any other creative work. And, by making an exact copy of the protected work (as evidenced above) there is copyright infringement. Practically speaking, Whitmill is likely doing this to get publicity and to get a huge paycheck. I can't say that I blame him. I seriously doubt the movie release will be pushed back. I suspect that the parties will reach a settlement agreement beforehand or the court will not grant the injunction and just require the producers to pay damages after the fact. Also, it is worth noting that the producers may try to argue "fair use" here. Their arguments may revolve around parody or transformative use, but I am skeptical about the success of those defenses.

One interesting aspect to this case is that there was never a lawsuit regarding the original Hangover where, as you will remember, the Mike Tyson face tattoo was also displayed. So what's the difference? The key difference is that the tattoo was displayed on Mike Tyson himself. Most tattoo artists will either give you an express license (in writing) to display their tattoo and, if they don't, some courts have found that an implied license comes with a tattoo (although not in writing, it just makes sense). This means that when you pay an artist for a tattoo you are also paying for the right to "publicly" display the tattoo, which is, legally speaking, a copyrighted work (assuming originality requirements, etc. are met). But, once that tattoo is copied without paying the original artist or getting his consent-- as we have in The Hangover 2 -- you run into copyright infringement.

Check out this article from MSNBC for more details.