This Tattoo is Under Copyright, Says Mike Tyson’s Tattoo Artist

According to recent news stories, Mike Tyson’s tattoo artist is suing the studio behind The Hangover: Part Two for copyright violation. In the film, Ed Helm’s character wakes up to find one side of his face sporting the iconic design.

The Missouri-based artist, S. Victor Whitmill, created and copyrighted the design called “Tribal Tattoo” back in 2003 when he applied it to the left side of the boxer’s face. At the time, Tyson signed a release waiving all rights to the design and holding Whitmill as the “sole creator, author, and owner of all rights, including copyright, in the Original Tattoo, which is original and fixed in a tangible medium of expression.” Well, it is a permanent inking, so we suppose “fixed” is right.

Can you copyright a tattoo? In Anderson v. City of Hermosa Beach, the Ninth Circuit found that tattoos are sufficiently imbued with elements of communication to fall under the First Amendment, and deserve the protection of freedom of expression. In this light, the protection may also extend to copyright, which applies to creative expressions fixed in tangible media. Instead of drawing on paper, you’re drawing on skin. Whitmill may have a substantial case, as if his song or poster were used in the film without permission or credit.

Surely Whitmill is not the only individual to have created some vaguely tribal/polynesian design, but originality is not the issue (Whitmill isn’t suing just anyone with a design similar to his). The real question is that of fair use, which attorneys look at by posing four main questions:

What is the purpose of this copy? Warner Bros. isn’t in the business of tattoo design and inking, so they’re not trying to make a profit off of the design itself. The message they are trying to convey with the “tattoo” is different from the message Whitmill and Tyson are going for — the latter pair are expressing the fighter’s nature, while the studio is referencing popular culture (and possibly poking fun of a drunk tourist’s surface-level appreciation of cultural practices). If Ed Helms came at you with a tattooed face you’d fall on the floor laughing, while if Mike Tyson did, you’d drop into the fetal position.

What is the amount and substantiality of the portion used in relation to the copyrighted work? Well, the copy here is not a real tattoo. Furthermore, it’s made to look like the kind of tattoo you’d get from a cheap parlor in Bangkok, as opposed to an actual attempt to go to a high-end professional to get a replica. Again, this difference in medium alters the message conveyed in its expression. A little girl with a stick-on butterfly tattoo elicits a different response than if she were actually sporting ink.

What is the nature of the copyrighted work? The piece in question is a tattoo, and while tattoos appear to be covered under the first amendment as legitimate forms of expression, they also carry a stylistic purpose. In the same way that you can copy The Sassoon or The Rachel without having to pay the original stylist who came up with it (or the wearer, for that matter), many people try to emulate tattoos that they’ve seen and liked. It would appear that this is the assumption the studio wants you to make about the character’s motivations.

What is the effect of the copy on the potential market value of the copyrighted work? Presumably, with increased publicity from the movie, more people would recognize the Tyson tattoo and thus Whitmill’s work, raising its market value. However, pirate tattoo artists (not the peg-legged kind) may diminish the value of the design by creating copies for customers without paying royalties to or being licensed by Whitmill. If Whitmill made his copyright ownership known, that could increase the value of the work. And that’s exactly what he’s done with this lawsuit.

In any case, while Whitmill owns the copyright, Warner Bros. will likely employ the parody defense. The incident with the tattoo after a drunken night in Bangkok is a clear callback to Helms’ character’s missing tooth and Tyson’s own cameo in the first film.