Copyright and a Tattoo?

By Charles Hwang

Reviewed by Jennifer Williams

If you have ever gotten a tattoo it is unlikely that you have wondered who owns the tattoo. But if your name is Mike Tyson you might want to take some time to figure it out.

Actors, celebrities and athletes have been sporting tattoos for a very long time, but recently there has been an explosion of tattoos in the mainstream. Everyone from Jessica Alba to Johnny Depp have some artwork on his or her body, but despite how mainstream tattoos have become, though not the first case of its kind, it’s one of the most high-profile cases regarding the use of a tattoo.

In 2003, Victor Whitmill created the ‘tribal tattoo’ on Mr. Tyson’s face. On that same day Mr. Tyson signed a release form stating that “all artwork, sketches and drawings related to [his] tattoo and any photographs of [his] tattoo are property of Paradox-Studio of Dermagraphics (at the time Mr. Whitmill was doing business as Paradox)” Since then Mr. Tyson has been featured in major boxing events, appeared in “The Hangover” and as of January 2011, filed for trademark rights in his image and the tattoo to be used in commerce in posters, decals, key chains and vitamins.

Mr. Whitmill registered the tattoo as his original work with the United States Copyright Office on April 19, 2011. On April 28, 2011, one month prior to the release of “The Hangover: Part II”. Mr. Whitmill filed a complaint against Warner Bros. Entertainment Inc. seeking, among other things, compensation for infringement of the work and an injunction to prevent the studio from releasing the film.

There are several interesting issues with regard to this suit; the most interesting is whether Mr. Whitmill’s tattoo is in fact a copyrightable original work. Though Mr. Whitmill’s filing gives him ground to file for infringement, and there is a presumption of copyrightability, there is a chance that Warner Bros. may effectively defeat that claim. Under Lanham Act 17 U.S.C. §102(a): “Copyright protection subsists, in accordance with this title, in original works of authorship fixed in any tangible medium of expression, now known or later developed, from which they can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine, or device.”

Whether the tattoo is an original work of authorship can be parsed into two pieces: whether the work is original and whether it is a work of authorship. Originality aside, the more salient issue is whether a work of authorship can be fixed on a human being and whether a person, the face of a human being, is a tangible medium of expression. Fixation in a tangible medium of expression requires that a work “is ‘fixed’ in a tangible medium of expression when its embodiment…[is] sufficiently permanent or stable to permit it to be perceived, reproduced, or otherwise communicated for a period of more than transitory duration.” 17 U.S.C. §101. When applied to the facts it seems that Mr. Whitmill’s work is indeed fixed in a tangible medium of expression because the embodiment is on Mr. Tyson’s face is stable, may be perceived or reproduced as it has been in “The Hangover: Part II”, and because the tattoo is permanent it is perceived…or otherwise communicated for a period of more than transitory duration.

In response, Warner Bros. claimed the expected gamut of defenses ranging from fair use to parody and even cites Mr. Tyson’s own commercialized use of the tattoo as mentioned earlier. Furthermore, Warner Bros. argues against an injunction citing the severity of potential damages that may befall them and other third parties, particularly movie theaters that sold advance tickets, if the movie’s release is prevented.

So far it seems that the ruling will favor Mr. Whitmill. During oral analysis U.S. District Judge Catherine Perry of the Eastern District of Missouri stated “there was no parody or transformative use” and dismissed Warner Bros. claim that the tattoo should receive limited or no protection because it’s on a human body. The two likely outcomes of this suit are settlement between the parties or a decision by Judge Perry granting Mr. Whitmill a judgment on the merits with an award of monetary damages, but without an injunction. Judge Perry will likely rely on the fact that an injunction preventing the release of the film would cause too much damage and leave Warner Bros. open to too much liability to warrant such action. As of yet, no injunction has been filed so it might be a good idea to get hungover with The Wolf Pack.

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