Monday, June 06, 2011

Can you copyright a tattoo? Legally-speaking, it's a legitimate question

ST. LOUIS. Given the litigious environment in which we live in, I suspect some of you are thinking that the copyright suit over the replica Mike Tyson tattoo in the film "The Hangover: Part II" is the latest in a long-list of frivolous suits that plague the legal system. However, as tattoos consecrate their place as "works of art," it was only a matter of time before tattoo artists attempted to claim and enforce an exclusive copyright over the original tattoo and now derivative works also (copyright protection extends to "derivative works" also).

To copyright a work, it must constitute an "original" but whether it's painted on a canvas, a wall or human skin is irrelevant. At the time S. Victor Whitmill created the original Tyson tattoo, he registered the copyright over the work and sought a release from Tyson relinquishing any rights he may have had over the tattoo and agreeing that Whitmill was the owner of the copyright. As such, Whitmill therefore had exclusive rights over any "derivative works," the tattoo in the film likely constituting as much. Not only does the design look strikingly similar, it's a direct reference to Tyson himself who appeared in the first film.
Mike Tyson and Whitmill's
Maori-inspired tattoo
The obvious defense for Warner Bros. (which they raised in their response) is to say that the tattoo in the film is "transformative" and its use to make a "parody" constitutes "fair use" ("parody" is widely held as coming within the six permissible uses in the Copyright Act -- a requirement that is often overlooked as attention is focused on the four-factor test in Section 107). The "fair use" defense embodies the balance at law between the copyright owner's rights and the need to not "stifle creativity," parting from the reality that nowadays almost all works of art are inspired by to a greater or lesser extent by existing works. The main obstacle for the defense will be to overcome the hurdle of the first factor: whether the use of the reproduction is "commercial" or "educational." Technically, federal courts are to weigh the four factors equally in determining whether a particular use is "fair" or not but in practice, the first factor is invariably given significantly greater consideration compared to the other three (some commentators have even argued that the first factor is "definitive"). The fact that Warner stood to reap huge profits from the film will likely not bode well with Judge Catherine D. Perry and if the use is held to be copyright infringement and not "fair," Whitmill will be entitled to the profits derived from the infringing use (among other damages). How the court would decide what part of the profits were derived from the infringing use and should therefore be disgorged though is unclear. I guess the simplest way would be to calculate the total time the replica tattoo is on the screen for as a proportion of the total running time of the film and use that percentage when awarding damages. But odds are we'll never know as the case will probably settle before we get to the sentencing stage.

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