Thursday, May 12, 2011

Tattoos & Copyright

Tyson&helm Mike Tyson is famous for a lot of things: his boxing, his pigeon racing, his taste for human flesh.  In the tattoo world, however, he's best known for his truly awesome face tattoo. 

In a strange turn of events, the artist that inked Tyson's face is suing Warner Brothers to stop the distribution of The Hangover II.  A character in that movie wakes up in Bangkok (after a long night of drinking) and finds his face mysteriously covered with a tattoo that looks very similar to Tyson's (If I had a nickel...).  The artist, S. Victor Whitmill, claims that Warner Bros. has illegally reappropriated his work and infringed on his copyright. 

Whitmill might have a good case;  He has a signed release from Tyson granting him ownership of the work, and the tattoo has a very prominent place in both the movie and the promotional materials.  Moreover, there's both scholarship (Christopher A. Harkins,Tattoos and Copyright Infringement: Celebrities, Marketers, and Business Beware of the Ink, 10 Lewis & Clark L. Rev. 313 (2006)) and caselaw (Gonzales v. Kid Zone, Ltd. and Transfer Technologies, Inc.) that suggests tattoos are fully copyrightable.

A couple of points here.  First, Whitmill's suit seems to violate a pretty strong social norm in the tattoo world.  As Pat Fish, a Santa Barbara artist notes, "Attempting to bring lawyers in always makes things worse.  They are Harpies, they shit on everything they feed on.  No one in their right mind would ever try to bring lawers into the tattoo world . . ."

Second, if you extend the reasoning here, could Whitmill keep Tyson from appearing in movies?  How does the tattoo copyright interact with Tyson's right of publicity?  Does Tyson have some kind of implied license to, ugh... use his face. 

Steve Clowney

Intellectual Property | Permalink

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Could I be sued if I get that awesome Calvin and Hobbes tattoo I've been planning?

Posted by: Jessica Owley | May 12, 2011 5:53:42 AM

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