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.
June 7, 2011
a
Since the work was obviously commissioned by Tyson, wouldn’t Tyson hold the copyright if there was one?
He obviously didn’t create the work without the canvas’ approval – and probably received payment for the tattoo design.
June 7, 2011
Mary Marubio, Esq
Ugh. Here is what IS copyrightable in the tattoo world: Flash. That’s it. A shop buys the flash sheets and in turn can re-create (to the best of their ability) the images. If the shop did not purchase the flash sheets then there is a violation of copyright law. I think it ends there.
Once the ink is in the skin – the wearer (owner) certainly has the right to display and photograph the art. Celebrities with tats are photographed, then shown on TMZ or People.
I also want to know if the tattoo artist is being sued by the Maori tribe. He did after all rip them off.
June 7, 2011
Coco
The artist actually got Tyson to sign a contract saying that the design belonged to the artist and not to Tyson. The artist says that when he etched the tattoo, he gave Tyson a license to the design. Also, there is probably some element of First Sale here. When you buy a copy of something, you get the right to resell the copy, even if you can’t make copies and sell them. That is sort of what happened here, in that Tyson got a copy of the design and now can use it where ever he takes the canvas (ie his face).
MC, I don’t know if the artist is being sued by the tribe, but there is that guy who wrote a whole book on Maori tattoos who says there is nothing additional to the Tyson tattoo other than what the Maoris traditionally do. But, never having gotten a tat, I don’t know a Flash is. What’s a Flash?
June 9, 2011
Jay
Makes sense why the studio would want this to be a battle between copyrigtable and “un”-copyrightable content, and not fair use (even though I agree with you on the fair use conclusion here). If they were to win on fair use, suddenly people who aren’t giant studios now have precedent for a fair use that falls more within the “comment” (generally speaking) language of the Fair Use statute in an entertainment context, and isn’t a precise parody (i.e. as a gross simplification: it’s not “making fun of” the design or designer). I would think the studio does not want that precedent out there, and would rather pay than have to make a fair use argument. The argument as to whether the concept of copyright applies to tattoos, however, is none of the studio’s concern after this case (unless they want to make a living of suing people for their knock-off, Snake Plissken belly-cobras).
June 10, 2011
Grant
awesome article… a great example of the fair use principle and a fun read!
June 17, 2011
Coco Soodek
Grant, thanks so much for your comment. Please come back often.
Coco
July 5, 2011
Mary Marubio, Esq
Flash refers to the sheets of designs that hang in a shop. An artist created those – shops buy them and hang them up for customers to peruse. The shop has them for the poor mopes who aren’t creative enough to come up with their own design or rich enough to discuss a one of a kind with a tattoo artist. Although some flash art is great, like Sailor Jerry – other flash art is downright pitiful (Chinese character for “bad ass” for example).
July 18, 2011
Linda Mensch
Fun read and ride… I’m with you on this one– I would ignore the “canvas” argument, because I think art can be created on anything. Nimmer is just wrong on this. The key for me is originality, not the arguably transformative use by the tatoo artist. The art is traditional, public domain material. Design patent anyone?!