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Tattoos and Copyrights: Inseparable from the Individual or a ‘Borrowed’ Image?

Published onSep 17, 2011
Tattoos and Copyrights: Inseparable from the Individual or a ‘Borrowed’ Image?

In the newest wave of intellectual property suits, one Hollywood studio is being sued for violating a tattoo copyright.  In “The Hangover Part II,” wimpy D.D.S. Stu wakes with a hangover that will last a lifetime: a huge tribal symbol tattooed to his left cheek, identical to the Maori-themed tattoo world-champion boxer Mike Tyson dons.

While millions of fans found humor (and irony) in the Tyson-inspired tattoo on Stu’s face, Mr. S. Victor Whitmill is not laughing.  A tattoo artist from small-town Missouri, Whitmill claims to own the copyrights to Mike Tyson’s tattoo, and therefore the exclusive right to create derivative works as well as the right to public display of the tattoo.  In his suit against Warner Bros. for appropriating the copyrighted “Tribal Tattoo” onto Ed Helms’ character, Whitmill claims, “this case is not about Mike Tyson, Mike Tyson’s likeness, or Mike Tyson’s right to use or control his identity.”  Rather, his complaint states it is about the copying of the tattoo onto someone else, and the failure to obtain permission to reproduce a derivative work for use throughout the film and promotional materials.  So far, a U.S. District Court Judge has denied Whitmill’s request for an injunction to prevent the opening of the film.

When a copyright is granted for a work of body art, the author is afforded the exclusive rights to reproduce the work, adaption, public display, and perhaps even moral rights.  Ownership of a copyright is not ownership of the material on which the work is embodied, whether it is a canvas, a wall, or a human body. Copyright infringement occurs when an individual reproduces a substantial portion the essential elements of a copyrighted work without the permission of the copyright owner.

Since courts are not art critics, it is not their place to determine which works should receive protection as long as they meet the statutory requirements of originality and fixation.  Originality is a low threshold, and merely requires that the work is not a copy and is more than trivial.  In fact, Mike Tyson’s tattoo is already registered by Whitmill, though Tyson is attempting to register the original drawing of the tattoo.

Hence, Mike Tyson does not own his tattoo.  While there is an agreement with Whitmill, providing Tyson with the right to use his tattoo in media appearances, it does not provide him with right to reproduce it.  Further, Tyson does not have the ability to license its use, despite the fact that the tattoo is on his face and is widely considered a primary part of his image.

A similar suit was initiated in 2005 by tattoo artist, Matthew Reed, who sued Nike and NBA player Rasheed Wallace, asserting rights in the reproduction of a tattoo in Nike commercials.  The commercial features the tattoo, recreating it while Wallace describes the meaning.  While Wallace initially came up with the idea for the tattoo, that fact is irrelevant because copyright protection does not extend to ideas or concepts, like the selection and arrangement of the elements comprising a tattoo.  Rather, copyrights protect only the fixed expression of the concept.  The case eventually settled out of court, leaving many issues unanswered.

Warner Bros. has already countered Whitmill’s complaint claiming the affirmative defense of fair use.  Fair use is an exception to the exclusive rights of copyright holders allowing another to use or reproduce the copyrighted material for certain limited purposes, such as education, without permission.  Warner Bros. has the burden of proving that the use of Tyson’s tattoo in the movie satisfies the factors of the fair use test in § 107: (1) the purpose & character of infringing use (commercial or non-profit & educational) ; (2) the nature of infringed work ; (3) the amount appropriated ; and (4) the effect of infringing use on the market for the original.

When determining fair use, the primary factor is the purpose and character of the use.  The use must be transformative, altering the original work with new expressionas opposed to being a derivative work.  In this situation, it would be a stretch to claim that the use of the tattoo on Stu’s face is transformative.  The tattoo in the movie is supposed to look like Tyson’s tattoo—that’s the point, the irony—especially with Tyson appearing in both films.

Further, the court will also consider whether the character of the use was more commercial or educational in nature.  In Sony Corp. of America v. Universal City Studios, Inc., the Supreme Court held that all commercial uses are presumed unfair, a substantial burden for defendants to prove.  The first factor favors Whitmill.  In addition, as the entire tattoo was appropriated in the film, so the third factor also helps his case.  However, the effect of the tattoo appearing in the first movie and again in the Hangover II has inevitability increased the value and recognizeability of Tyson’s tattoo.  The fourth factor supports Warner Bros., while the second is not definitively in favor or either party.  Overall, a court would be most seriously persuaded by the first factor in the § 107 test.

The purpose of the Copyright Act is to promote the useful arts.  With this in mind, copyright protection is granted in order to fuel originality and advancement by protecting one’s monetary interest in creating.  However, with over 40% of Americans, ages 36 to 40, sporting tattoos, and the industry’s popularity rising, demonstrated by shows like L.A. Ink, how much economic incentive is really created through copyright protection?

First, most tattoos will never get enough publicity to warrant any form of protection, as well as the fact that to obtain the copyrights for the thousands of designs artists create annually would be irrational.  Second, to obtain rights to a work someone else has incorporated into himself or herself is toeing the line of interference of one’s constitutional rights.  Finally, for the few artists lucky enough have a client famous enough to warrant copyright protection, the artist should understand that their work will be viewed, reproduced, and used commercially as it is a part of that celebrity or athlete’s image.

It is likely that the court in will grant Whitmill monetary relief for the copyright infringement in “The Hangover Part II”.  As tattoos continue to increase in popularity, with stars like Megan Fox, Kat Von D, Victoria Beckham, and Steve-O having recognizable, well-known tattoos, an artists’ ability to control how their work is used will become more difficult.  Infringement will become more widespread, as the number of celebrities and athletes getting inked increases.  Paparazzi will always be around to capture the latest tattoo trends and magazines ready to gossip about them.

To control art another has incorporated into themselves is risky.  Copyright protection would provide tattoo artists with an unprecedented right to control another’s autonomy, prevent him or her from dressing how they wanted, and from changing his or her appearance by altering the tattoos.  If an artist can control how an individual wears and displays his or her tattoo, does that not negate the very essence of a tattoo and the individuality it is supposed to represent?

* Ashley Webb is a third-year law student at Wake Forest University School of Law, and is Vice President of the Domestic Violence Advocacy Center.  She holds a Bachelor of the Arts in both Political Science and History from Augustana College, Rock Island, Illinois.  Upon graduation in May 2012, Ms. Webb intends to practice corporate law, particularly focusing on corporate governance, government relations, and intellectual property law.

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