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Jun 22 2011

Warner Brothers Settles “Hangover 2” Tattoo Lawsuit

Days before the blockbuster hit “Hangover 2” was set to open, a Missouri tattoo artist named S. Victor Whitmill sought an injunction to try and prevent the movie’s release. While the judge denied the injunction and let the movie come out as planned, the case was also allowed to continue. His argument was that the character played by Ed Helms sports face tattoo that is identical to the design Whitmill created for former boxing champ Mike Tyson. As usual, the settlement amount is undisclosed and in a joint statement the parties merely stated that:

“W.B. and Mr. Whitmill have amicably resolved their dispute. No other information will be provided.”

I am sure that tattoo artists around the country applauded the settlement as vindication of their craft even though there was no official decision that Whitmill had any protectable interest in the design. In court appearances, the judge assigned to the case, Catherine D. Perry, stated:

Of course tattoos can be copyrighted. I don’t think there is any reasonable dispute about that . . .the tattoo itself and the design can be copyrighted and I think it’s entirely consistent with the copyright law.

I wholeheartedly agree with that legal premise, after all a work of art is a work of art, whether its hanging on a wall or engraved on a person’s face. While the issue has never been litigated in federal court to my knowledge, Judge Perry likely made an accurate assessment about tattoo art. But this particular tattoo, I think, would have difficulty gaining copyrighted status because it lacks originality. All it is, is a series of stylized tiger stripes surrounding the eye. Maori warriors, Pacific Island fishing boats, and Native American totem poles have used similar designs for centuries. The design appears to me too generic to be the intellectual property of one particular artist. This argument is similar to the claims regarding jewelry design that I have discussed in a number of earlier posts. Some are protectable, some are not – it all depends on the level of originality reflected in the piece.

If anyone could have a claim against its use, it might be Mike Tyson, as the tattoo has almost become his trademark, and that is what the movie is parodying and trading off of. Not the design itself, but that Ed Helm’s character, Stu, must have said to the artist “I want Tyson’s tattoo.”

The case brings up interesting issues for celebrities who indulge in tattooing themselves. It may be prudent for them in the future to have the tattoo artist sign a release or an assignment of rights that the design belongs to the celebrity and that it is for the celebrity to decide who else can use it and who can’t. I am speculating that in this particular case, the WB probably decided it was cheaper to pay some sum to the artist and resolve the claim rather than litigate this relatively novel legal issue.

4 comments

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  1. Jonathan Kugel

    Likely, Mr. Whitmill simply cashed in on what seemed like a great offer from WB in the face of mounting legal fees and a questionable outcome.

    While I agree that an original tattoo should be able to be copyrighted, I would have liked to see a final judgment. Particularly because in future scenarios such as this one, where the parties are in completely disparate bargaining positions, having some precedent to point to would greatly increase the tattoo artist’s bargaining position. When going up against the entertainment giants of the world who have inordinate amounts of cash and expensive legal teams, tattoo artists, even extremely successful ones, will be at a serious disadvantage in terms of maintaining a possibly protracted litigation.

    This may not be as important in an artist versus artist infringement scenario, as both parties will likely be in more comparable bargaining positions. However, a final judgment would have nonetheless served to speed up future determinations and possibly would have provided a framework for future litigation.

    I guess we will have to wait until Hangover 3.

    1. Oscar Michelen

      Good points. I agree that I would have liked to have seen a decision on this. Tattoo artists can increase their leverage by registering their unique designs with the copyright office. That way in any infringement lawsuit they may be eligible for statutory penalties and legal fees.

  2. Jim Lutz

    Doesn’t this fall under the “fair use” provision of copyright law since this is a parody?

  3. Oscar Michelen

    Good question Jim, but the answer is “No.” In order to qualify as “fair use” under the parody provision, you must be parodying the copyrighted item. They are not parodying the tattoo, they are copying it. They are not making fun of the tattoo just that its funny that Stu would end up with that on his face. So Weird Al’s songs for example usually make fun of the song itself in some way as well as the subject of the song so they are parodies. “Airplane” and “Scary Movie” can directly copy elements of the films they are making fun of, because they are parodying the films themselves.

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