By Scott Shaffer
A Missouri tattoo artist named S. Victor Whitmill sued Warner Bros. because, get ready for this, its movie The Hangover II includes reproductions of the tattoo that Whitmill inked onto the face of boxer-turned-thespian Mike Tyson. Whitmill claims he owns the rights to the tattoo design and asked a Missouri court for a preliminary injunction delaying the release of the movie to 3600 theaters. On May 24th, this request was denied. The court did not immediately provide an explanation for its decision. Still, the lawsuit will proceed with Whitmill seeking monetary relief from the studio. Whitmill claims the depiction of the tattoo infringed on his copyrights, and he also reserved the right to add a libel claim after he sees the movie because he heard that the tattoo artist shown in the movie was depicted as crazy and that will somehow make viewers think he is crazy.
Whitmill put the tattoo on Tyson’s face on February 10, 2003, just twelve days before Tyson knocked out Cliff Etienne with the ink practically still wet on his face. The tattoo was a Maori tribal design from New Zealand. Fast forward to the present day, and Tyson, now retired from boxing, filmed his role in The Hangover II, reprising his part in the first movie, in which he played himself. As part of the movie’s plot, one of the other characters goes on a bender and wakes up with the same tattoo Tyson has, only to meet Tyson later in the movie.
When Whitmill got wind of the plotline of the forthcoming movie, he registered the design of the tattoo with the copyright office. The copyright certificate was issued in April 2011, and Whitmill filed suit about two weeks later, with intent to halt the release of the film to 3,600 theaters. Tyson himself is not a party to the lawsuit, as Whitmill did not sue him, and Tyson makes no claims against Warner Bros., the movie’s producer.
While the lawsuit raises some novel issues about an artist’s right to profit from his creations-- “One of the things that the copyright law gives you as an artist is control over your work — and he lost control here,” one of Whitmill’s attorneys told the New York Times— it seems doubtful Whitmill can achieve a full victory on his claims, because the logical extension of a full victory would give Whitmill control over Tyson’s face.
A tattoo on a human body should not be subject to copyright protection, Warner Bros. argued, because validating such a right would allow Whitmill to “dictate whether and how Tyson could appear in magazines, on television, in film and on the Internet, and could potentially prevent Tyson from removing or changing his tattoo… if Tyson chooses to obtain an adjacent or overlapping tattoo on his face… Tyson will have violated plaintiff’s exclusive [copyright].” Because the tattoo is incorporated into Tyson’s head, the copyright should not be allowed, argued Warner Bros. “From helping him to complete the most mundane daily activities to enabling him to win boxing championships, Tyson’s body has an intrinsically utilitarian function,” read one of the more creative passages yielded in defense of this rather absurdist lawsuit.
Although the preliminary injunction was denied and the movie will be released as scheduled on May 26th, the lawsuit will go forward and will likely result in a precedent-setting copyright decision.
