That was close! The release of The Hangover Part II was in danger of being enjoined by a federal judge… but, for better or worse, the Honorable Catherine D. Perry of the U.S. District Court for the Eastern District of Missouri on Tuesday denied the request for a preliminary injunction made by the tattoo artist who in 2003 gave Mike Tyson his… let’s say impressive facial ink.
The tattoo artist, S. Victor Whitmill, has sued Warner Brothers Entertainment, the studio responsible (if that’s the word we want) for The Hangover Part II (and the original The Hangover) for copyright infringement. Specifically, Mr. Whitmill claims that reproduction of the tattoo (that he gave Mike Tyson) on the face of the character in the new movie played by Ed Helms (and also use of Helms’s likeness, with tattoo, on promotional merchandise) infringes upon his, Mr. Whitmill’s, exclusive rights in the work (the tattoo). Mr. Whitmill moved the court to enjoin the release of the movie, scheduled to open nationwide on May 26, the biggest movie-opening weekend of the year.
Nota bene: Unfortunately, while the short form order denying Mr. Whitmill’s motion is available through PACER, the transcript of the bench order is not (as of this writing)… so I’m gleaning some things from the New York Times article that appeared yesterday.
These are the facts one needs to know to understand what’s going on here:
- “Iron” Mike Tyson was a boxer, and an especially successful one. In 2003, he got a really cool, really big tattoo on his face. It looks like this.
- The Hangover is a movie about three men who have a really, really weird night, followed by a really, really weird day.
- One of the characters in The Hangover is a milquetoast dentist. His name is Stu, and he is played by Ed Helms.
- Mike Tyson appears in The Hangover, playing himself.
- In The Hangover Part II, from what one can see in the trailers and other publicity material, Stu gets a tattoo exactly like the one that Mike Tyson has. Check it out.
The immediately interesting thing about the denial of the motion is that, at least according to the Times summary, Judge Perry—despite finding that Whitmill was likely to succeed in his claim on the merits, because there really can be no question that (a) Whitmill owns the copyright in the tattoo, and (b) Warner Bros. copied it without his permission or the benefit of an exception to Whitmill’s exclusive rights—found that the public interest (one of the factors to be considered on a motion for preliminary injunction) in letting the movie be released outweighed the harm to Mr. Whitmill that might result from denying him the injunction.
As reported by the Times:
“The public interest does favor protecting the thousands of other business people in the country as well as Warner Brothers, and not causing those nonparties to lose money, and I think it would be significant, and I think it would be disruptive,” Judge Perry said from the bench, rather than issuing a written ruling.
“I think that tilts the public interest in favor of Warner Brothers on this because all over the country people would be losing money if I were to enjoin this movie.”
If this writer may offer an opinion: What? Really? Can the release of a movie ever be in the public interest? It’s a movie. I love movies, but… it’s a movie!
Now, Judge Perry does seem to have told everyone involved that, at the end of the day, Whitmill is going to recover from Warner Bros. “Although the intangibles he’s losing can’t be completely known or quantified, there is some amount of money that will come close,” she said.
[stextbox id=”info”]By the way : Previous posts about IP rights in tattoos here include one about NBA star Rasheed Wallace’s tat; another post was somewhat further afield but implicated the tattoo version of the Prince symbol-thing. [/stextbox]
A note about those intangibles, since Judge Perry mentioned them: Whitmill is claiming not just copyright infringement, but also libel (although that might not be what he means, exactly), because the person from whom the character Stu gets his Tyson tattoo in Part II is a shady character, and Whitmill argues that he might be harmed in his reputation if moviegoers assume that the tattoo artist in the movie shares a personality with the real tattoo artist. This is not a compelling argument, probably… but it is something that might have persuaded Judge Perry to enjoin the film if she had been on the fence. Garden-variety copyright infringement, so to speak, can often be compensated for with just money… whereas harm to one’s reputation often can not be.
But back to the tattoo. In his testimony (presumably, because it is not in his motion papers), Whitmill explained that he and Tyson had decided on the ultimate design together, back in 2003. Although Whitmill alone committed that design to Tyson’s skin, it is possible that Tyson and Whitmill could be co-copyright holders, which scenario would give Tyson the prerogative to license uses of the work even without Whitmill’s approval. This, however, doesn’t seem to have been an issue… although Warner Bros. did attempt to persuade the court (of course) that Whitmill cannot have a copyright to a tattoo in the first place.
Warner Bros. argued that a tattoo is not a work warranting copyright protection. Judge Perry evidently scoffed at such a notion, and well she should. A tattoo is no different from a watercolor, except that it’s on someone’s body. Ah, argued Warner Bros. in its opposition, but the tattoo is on someone’s body, and “Congress never remotely intended to provide any author with the ability to control another person’s body.”
First, Warner Bros. (says this writer), Whitmill is not remotely trying to control another’s body. Second, are you familiar with the first-sale doctrine? It’s what lets you do what you want, more or less, with a copy of a book that you’ve bought, even though you don’t hold the copyright to the contents. Same thing here. Tyson is in no way restricted in what he may do with his face, even if he isn’t permitted to license uses of the artwork on it. (That said, there is a suggestion that because Tyson has in fact negotiated licensed uses of his tattoo design, allegedly with Whitmill’s knowledge and/or permission, something is indeed awry here… and, according to the studio, Tyson himself gave Warner Bros. his blessing to put the tattoo on Stu in Part II.)
“Of course tattoos can be copyrighted,” Judge Perry said. “I don’t think there is any reasonable dispute about that. They are not copyrighting Mr. Tyson’s face, or restricting Mr. Tyson’s use of his own face, as the defendant argues, or saying that someone who has a tattoo can’t remove the tattoo or change it, but the tattoo itself and the design itself can be copyrighted, and I think it’s entirely consistent with the copyright law.”
So Warner Bros. also argued, wisely (in this writer’s opinion), that its use of the tattoo in Part II—on the face of the timid dentist—is… yup: fair use, parody specifically. At first blush, this is a solid argument: Having a character diametric to Tyson sport the same ink is parodic, and it requires that the tattoo be identical, moreover. A merely similar tattoo would be funny, but the very same tattoo on Ed Helms is hilarious.
The problem is that there is no change to the work in question… only to the canvas, as it were. Perhaps for this reason (in part, anyway), Judge Perry appears not inclined to find fair use. “This was an exact copy,” she said. “It’s not a parody…. This use of the tattoo did not comment on the artist’s work or have any critical bearing on the original composition. There was no change to this tattoo or any parody of the tattoo itself. Any other facial tattoo would have worked as well to serve the plot device.” This writer agrees… except for the last part, for the reason I mentioned above (i.e., funny vs. hilarious).
So the movie will open this weekend… but the lawsuit will continue. And, likely—though unfortunately for those of us who get excited about cases like this one—the parties will settle. That would be too bad (again, for us) because there are an awful lot of very interesting aspects to this case, only some of which are touched on here. In fact, this is the kind of case that makes a lawyer-turned-writer wish he were still practicing. Almost.
UPDATE: Settled. As usual, it’s secret, and we learn nothing for our trouble! Hat tip to Kalman.
Originally posted 2014-09-05 10:55:56. Republished by Blog Post Promoter
Interesting slant on the parody argument. Is it parody if you put it on Jack Black’s face? Or Jerry Seinfeld’s? What if they make jokes about the tattoo itself as part of a routine commenting on tattoos in society and the inherent ridiculousness of someone sporting a big facial tat in the first place? What if Jay Leno blithely sported the tattoo for most of a show pretending that he didn’t realize it was on his face, like the guy wearing a “Kick Me” sign on his back? Contextually, where the tattoo is placed can obviously make it a piece of performance art — imagine a photograph that superimposes Tyson’s tattoo on the Statue of Liberty, the Great Sphinx at Gaza, of the Mona Lisa. Wouldn’t that be a possible parodic use?
The argument that it can’t be a parody if it is an exact copy of the tattoo on someone else’s face (rather than any other body part) is weak, particularly in light of the fact that the movie studio is not selling copies of the tattoo, but using it as an element of the absurd plotline for the movie. A fictional character sports a fictional (temporary) tattoo for a period of time, perhaps not even realizing that he has the tattoo at all, in the parallel universe of the movies. Who said parody has to be over-the-top-slap-you-in-the-face obvious, rather than subtle and understated?
It would have been a wiser choice, not just from an IP law perspective but in the telling of the story.
The impact would have been far greater if the tatoo had been somehow transformative and at the same time linked to Tyson’s tatoo – maybe something around both eyes, maybe including some humiliating text.
The shock value is not that it’s Tyson’s tatoo. Imagine waking up with something like that, or anything like that on your face AND your a dentist!
The tatoo didn’t have to be linked to the Tyson tatoo at all, although pretty much any provocative tatoo on the face, especially around one or both eyes would tie back.
There is a case where the parody fair use defense failed because the parody was not sufficiently transformative – Dr. Suess Enters. v. Penquin Books USA, Inc. . Here, the Cat in the Hat was used as a vehicle to parody the OJ trial. The use of the Dr. Suess characters was not transformative.
Seems each copy of the film made would constitute an unlicensed copy, and each showing an unlicensed public display.
This one will definitely make it to the copyright casebooks.