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Why Hangover II is a crash course in copyright

By on June 7, 2011 in Business Law

The legendary artist who etched the tattoo onto Mike Tyson’s face sued the makers of Hangover II for using it without his permission. (In the movie, Ed Helms wakes up in the morning with it on his face.) This is the lawsuit version of the Hangover (I, not II): a big, messy, funny mix of problems, surprises and unresolvable questions. And, just like Hangover I (not II) was a crash course in comedy, this case is a little crash course in copyright.[i] The tattoo artist, Victor Whitmill, says he has a copyright in Tyson’s tattoo, although it is not clear that he really does. Here’s why.

Crash Course in Copyright

A copyright gets created whenever original and creative copyrightable content is tangibly expressed. Click on the Crash Course diagram for a bigger look.

Whitmill has to have all three of these, but it looks to me like he only clearly has one: copyrightable content. Copyright is only born to certain types of content, but one of those is graphic art. The tattoo design is a work of graphic art and, therefore, copyrightable content. So, that’s one for Whitmill.

But, the tattoo design may not be original and creative or tangibly expressed. Whitmill’s design, which he says is “Maori inspired,” may too closely resemble standard Maori ornamentation to be considered “original.” In fact, there is an author of a book on Maori tattoos that finds nothing unique in the tattoo. Whitmill’s mission will be to prove that the tattoo has enough artistically-inspired variation to make it its own thing.

The bigger problem, though, is the one that everyone is talking about: the tattoo may not be tangibly expressed.  Many people are wondering whether flesh can be canvas (for hard law, check out Eric Goldman and Ann Bartow; for fun, check out the Freakonomics guys or  Wired.) There is also some concern that giving copyright status to something affixed to a face could require draconian remedies to enforce the rights of the copyright owner.  (The issue of flesh-as-canvas took an absurd turn when THE GURU of copyright law confessed to the court that, in the past, he sort of made it up when he wrote that tattoos can be copyrightable, but now he thinks they can’t. He made this confession as a paid speaker for the movie studio.)[ii] I think that ultimately tattoos will be declared copyrightable, but sometimes advances in law have to lose a few rounds before they go forward; this may be one of those times.[iii]

Even if Whitmill can prove his copyright is real and strong, he still will need to prove that Hangover II copied the work and used it inexcusably. Copyright gives its owner exclusive power to copy, sell, show and change the content. That power does not include stopping people from commenting or reporting on it or re-selling a copy they already bought.

Was the Tattoo Copied? There may be some issue with how closely the image is duplicated on Ed Helms’ face (see the comments on this post). If there are differences between the Tyson tattoo and the Helms tattoo, then it may just be a copy job of the idea of a Maori-inspired tattoo, but not infringement.

Fair Use. The biggest problem for Whitmill is that the movie studio used it excusably – that this is a clear case of fair use. “Fair Use” is the freedom to copy someone else’s copyrighted work to comment on it or to parody it. (You can read my fair use post – this one about a famous artist – for a longer explanation.)  If Hangover II used the tattoo to make a comment, then there is no problem. Unfortunately for Whitmill, the tattoo plays a critical part of the plot and the comment.

**Spoiler Alert – Just skip this paragraph if you haven’t seen it.**  In Hangover II, Ed Helms’ straight-arrow dentist states his desire for a peaceful transition to married life, but awakens one morning in a filthy, unknown apartment in Bangkok, next to a cloud of cocaine, with the Tyson tattoo and no memory of the previous night. The tattoo efficiently conveys the breadth of Helm’s departures from normalcy. Helms learns that he got the tattoo after a Thai transsexual stripper barebacked him, making him weep with pleasure (no mention was made of the risk of HIV transmission to the unknowing wife.). His final march home begins once he confronts his internal, hidden drives for pleasure; essentially his id. As a protagonist, Helms is only able to get what he wants – marriage with his father in law’s blessing – once he embraces his darker side. In the end, the film resolves with a wedding and hope that both bride and groom will get used to the tattoo and what it represents. ****

 

 

For copyright purposes, the role of the tattoo in the story and the background of the tattoo matter. The tattoo is a distinctive piece of art, not only for its aggressive, exotic lines, but also because of the man who bears it publicly. The ultimate bad ass, Tyson is a father of many with a prison past. This is the guy who used to knock out his opponents in blink-and-you’ll-miss-it 8 second fights, who owns a tiger and bit a guy’s ear off.  Hangover II uses Tyson’s tattoo to argue that every man, even the most wholesome, must confront and negotiate their inner Tyson.

 

Hangover II is not high art, but most copyright isn’t either. The whole purpose of fair use is to allow people to make comments using other people’s work. Agree or not, Hangover II makes a protectable commentary using another’s work. The judge in the beginnings of the case sort of dispensed with the fair use issue, but I would bet money that it would come back or would get supported if appealed.

Odds are this case will get settled. I hope not. Litigation is terrible and would be a huge distraction for the parties, but it would be great for the spectators who want to know who wins.

[i] I’m uniquely qualified to write this article, not because I’m a copyright lawyer (I am), but because I saw Hangover II on its opening night and, unlike many of you, I liked it.

[ii] For future reference, if the artist had registered the copyright in the drawing of the tattoo and then registered the tattoo itself as a derivative work, then the permanence of the design would not be as much of an issue. As it is, Whitmill will get lucky if a judge decides it would be copyrightable on its own, so the issue of flesh-as-canvas can be avoided.

[iii] Given the growing creditability of tattoos as a form of expression, this may just be another necessary milestone in copyright evolution, much like the moment when the Supreme Court said photographs could be copyrightable art. Odd that Nimmer is on the regressive side.

 

 

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No Fair Use: Richard Prince Loses Badly

By on May 25, 2011 in Art Law

This is a blog post I wrote for my law firm art law blog. You can get it in on the art law team blog or read it below. 

In 2000, a photographer named Patrick Cariou came out with a book of photographs he took during the 6 years when he lived with the Rastafarians in Jamaica. In 2007, Richard Prince, along with his dealer, Gagosian Gallery, began exhibiting a series of collages that featured 41 photographs from Cariou’s book. Cariou sued Prince and Gagosian for copyright infringement. Prince and Gagosian claimed fair use. Fair use is a frequently used excuse to infringement. Basically, the fair use defense says this: Even though I borrowed your copyrighted work, it was fair use, so it wasn’t infringement.

But, what is Fair Use?
Fair Use is the freedom to copy someone else’s copyrighted work to comment on or criticize it or to parody it.

Four Questions of Fair Use
Fair Use is a narrow defense, which has no bright line. Instead, you have to ask several questions to decide if copyright use is not infringement because it is fair use.  Here are the questions:

  1. What was the purpose and character of the use?
  2. What was the nature of the original copyrighted work?
  3. What was the amount and substantiality of the portion used?
  4. What was the effect on the market for the original copyright?

PRINCE & THE FOUR QUESTIONS

The court in the Prince case took these four questions and applied them to Prince’s use. Let’s take them one by one.

  1. Purpose and character of the work. The purpose and character question seeks to identify how the defendant used the work. Did he transform it to make a statement or did he really just convert it to a commercial product for financial gain.Prince’s use would have tilted towards fair use, and away from infringement, if he had either transformed the portion he used to comment on Cariou’s original work or just not used the portion for very commercial purposes. This factor didn’t go well for Mr. Prince.Prince admitted that he had not commented on the work, being indifferent to the meaning of the original. And, the work in Prince’s hands was so commercial it was lucrative. Specifically, Gagosian sold eight works for $10.5 million, which was split 60/40 between the artist and the gallery. Gagosian also traded paintings for art work valued at $6-8 million.
  2. Nature of Copyrighted Work. The nature of the copyrighted work really looks at the quality and strength of the copyright in the original work.Here, Prince’s use would have tilted towards fair use if the Cariou’s copyright was weak. And, in spite of Prince’s claim that Cariou’s photographs were as original as the phone book, the court said,Unfortunately for defendants, it has been a matter of settled law for well over 100 years that creative photographs are worthy of copyright protection. found the judge.
  3. Amount and Substance Used. The amount and substance used looks at how much the defendant used – was it just enough to make his point or did he take more than he needed (or the whole thing).Prince’s use would have tilted towards fair use if he had borrowed just a smidge of Cariou’s images or no more than necessary to make his point. However, here Prince borrowed the central figures of Cariou’s photographs, taking “the very heart of his work.”
  4. Harm to Original Owner’s Market. Harm to the original owner’s market looks for signs that the defendant’s use of the work hurt the original owner in his native or predictable market.Prince’s use would have tilted towards fair use if the market for his works was vastly different than Cariou’s. Prince argued that there was no market to harm, since he was more aggressive as a marketer. The Judge rejected that. In fact, one gallery actually canceled an exhibition of Cariou’s images to avoid being perceived as capitalizing on Richard Prince’s fame.

THE VERDICT AND THE PAIN

The federal district court in NYC rejected the fair use defense and awarded Cariou an overwhelming victory. Actually, Cariou crushed Prince and Gagosian. First, the verdict was in summary judgment – it never even got to trial. Second, the court found that Prince infringed Cariou in “bad faith,” based on Prince’s request to his assistant to go buy extra copies of Cariou’s books but not to ask Cariou for a license to use the contents. Bad faith infringement ought to entitle Cariou to huge damages. The actual money damages are to be determined.But the judge didn’t stop just with money; the judge imposed a measure of humiliation. Prince and Gagosian were ordered to deliver all copies and editions of the paintings to the court for destruction. And, Prince and Gagosian must even write all owners that the works infringe Cariou’s copyright, “were not lawfully made under the Copyright Act of 1976, and that the paintings cannot be lawfully displayed.”

THE MORAL OF THE STORY

Fair use is narrow. Sometimes the good guy wins.

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