Tattoo artist sues over “The Hangover Part II”

May 26, 2011

Mike Tyson CopyrightThe summer movie season has started, and we all know what that means.

Lawsuits.

First up, “The Hangover Part II.”

This lawsuit is over Mike Tyson’s tattoo.

Not the tattoo that’s actually on Mike Tyson’s face, but the tattoo that’s on Ed Helm’s character’s face.

The tattoo is an exact replica of Tyson’s, and is featured prominently on posters for the movie.

The artist who gave Tyson the tattoo in 2003, S. Victor Whitmill, is suing Warner Bros. over it, claiming copyright infringement.

More specifically, Whitmill is claiming that he owns the copyright over Tyson’s tattoo, and Tyson only has a limited license to it.

Whitmill claims that the use of the tattoo in “The Hangover Part II” is piracy and he has been damaged by its unauthorized use therein.

Damaged how, you might ask?

Whitmill believes that Warner Bros. should be paying royalties for its use in the movie.

Legally speaking, he doesn’t have much ground to stand on.

It would obviously take too long to delve into the details, and there’s not really a point since Warner Bros. has attached a Declaration by David Nimmer to their response (Nimmer is one of, if not the, leading expert on copyright law).

Nimmer’s Declaration makes the point that tattoos on human flesh are not subject to copyright protection, mainly because the human body is not an appropriate medium for a copyrighted work.

No case law has ever recognized tattoos as protectable by copyright, and Nimmer lists some outlandish possibilities that would result from tattoos gaining such recognition.

These include the artist being able to legally prevent the tattoo’s removal or modification and to accrue royalties from any public appearance of the tattooed individual.

Obviously no court is going to open that door.

And there’s no way to sufficiently narrow the scope of a tattoo’s copyright to avoid these possibilities while still keeping it broad enough to recognize Whitmill’s claim.

But let’s just assume the tattoo’s protected by copyright.

Warner Bros. still has a strong fair use argument, since the tattoo is used as a parody of the original (Tyson’s).

“Parody” is a long-recognized affirmative defense to infringement, and it’s very applicable here, since the tattoo is used in a very satirical manner.

To those familiar with the first “Hangover” movie, in which Tyson played a large role, the significance of the tattoo should be immediately understood as directly linked to the first movie and the plot elements involving Tyson.

Of course, Tyson’s tattoo appeared alongside Tyson himself in the original “Hangover'” movie, so why didn’t Whitmill sue back then?

No one expected the first movie to be as successful as it was, Whitmill included.

He may be suing now because he does think that he’ll see some cash out of the deal.

But if he was only interested in money, he would’ve sued long ago either when the first movie became a hit or when promotional materials for the second film revealed use of the tattoo.

Instead, as the timing of the suit indicates (immediately before the film’s release), Whitmill wants to be associated with the tattoo that the “Hangover” films will now make famous.

That will be worth more than anything Warner Bros. will offer to settle.