As you may have heard, tattoo artist Victor Whitmill is suing Warner Brothers in an attempt to gain money damages and enjoin the release of their film, The Hangover Part 2. Why? Because he put a tattoo on Mike Tyson’s face, and that same tattoo ends up on the face of Ed Helms’ character in the movie. Wow. It’s taken me a little while to process the awesome ridiculousness of this situation. One of the reasons I love copyright law is because all the seminal cases deal with terrific subject matter (A 2 Live Crew song called Hairy Woman? Yeah, that’s precedent.), but I never could have seen this one coming. Let’s delve a little deeper into the issues at play (with full complaint below)…
Many, upon hearing news of this case, will likely immediately start racking their brains to remember the four prongs or fair use and fit the movie into those, because I think the silly subject matter leads to the common sense conclusion, “Well, that must be legal, cause it’s damn funny.” Naturally, the mind jumps right to parody. As Justice Kennedy explains in Campbell v. Acuff Rose (See? 2 Live Crew. Supreme Court. Major precedent. Awesome), the reason parody is deserving of protection under fair use is because parody provides a commentary on the original work itself, and just uses the original work to effect that commentary.
Is it possible that there’s a fair use defense here? Certainly, I think there’s a colorable argument to be made that the Ed Helms tattoo and the reactions to it in the movie serve to show how objectively ridiculous the face tattoo on Mike Tyson is. But this case isn’t ever going to come down to a fair use defense being fiercely litigated at trial. Neither side really has any incentive to pursue this through trial: Warner Brothers, as a content producer, probably really doesn’t want to reinforce or expand fair use rights and Mr. Whitmill is no doubt much more interested in a quick payout than protracted litigation. So this case will likely either get tossed on summary judgment or settled quietly. So the question then becomes, are the underlying elements of a good claim there? I think so.
The first thing necessary for a good claim: a good copyright. That means an original creation fixed in a tangible medium of expression. In order for a creation to be original, it needs to have a modicum of creativity. This means that the sweat of the brow doctrine has been abolished (you don’t get a copyright through sheer effort, like in a compilation of data, it has to be creative effort), but that the bar for copyright is still set pretty low. For example, if you painted as close an exact replica of a Monet painting as you could, you would have a copyright in your creation, because each minor difference from the original represents an artistic choice in which resides some modicum of creativity. Of course, you only get a copyright in the part of your creation that’s original, so you’d only own those minor differences.
So is it possible for Mr. Whitmill to have a copyright on the tattoo? Short answer: probably. Even though the whole tribal tattoo thing is fairly unoriginal in the common sense of the word, Whitmill had to make specific artistic choices with regards to the design and placement on the face. That face? Well that’s a tangible medium of expression (a face is as good as a canvas, right?), which means that the tattoo satisfies the basic requirements of copyright.
My best guess is that that basic copyright will be enough for Whitmill to hang his hat on and that, after a little posturing and arguing over originality and fair use, the parties will settle quietly and all involved will move on from this delightfully silly conflict. Then again, I’ve been wrong before, I never saw a face tattoo copyright suit coming.