This is part of a series of posts talking about how the law interacts with tattoo art and what happens when other art gets involved. I’m still not a lawyer.
See the intro here.
Part 2 is here.
So the big story here is obviously the blockbuster movie that didn’t seem to hit a single roadblock in this matter, despite the tremendous publicity that featured a body artist’s work.
In 2011, the matter of tattoo copyright came up with the release of the film Hangover 2. Mike Tyson, with a large facial tattoo, is featured prominently in the film. Tattoo artist, S. Victor Whitmill, designed and executed the tattoo, which he has titled “tribal tattoo” (Cohen). Whitmill petitioned the District Court of St. Louis for an injunction against Warner Brothers that would prohibit them from using the tattoo in the film (Cohen). The suit states “Mr. Whitmill has never been asked for permission for, and has never consented to the use, reproduction or creation of a derivative work based on his original tattoo” (Cohen). Warner Brothers dismissed the suit as frivolous, but still suggests that the film’s portrayal of an identical tattoo on the face of a character played by actor Ed Helms constitutes fair use (Cohen).
According to Christopher Harkins, a copyright expert interviewed by the New York Times, “issues like how central the tattoos is to the plot, how much of the film it is in and whether it is shown in a non-parody context were the kind of factors a judge would consider when determining if ‘fair use’ was in play” (Cohen).
The judge in the case, Catherine D. Perry, rejected the request for the injunction. However, Perry did not agree with the argument that this was a silly lawsuit; in fact, she said that. “most of the arguments put forward by Warner Brothers were ‘just silly’” (“Tattoo”). She stated that Whitmill had a “strong likelihood of prevailing on the merits for copyright infringement” (“Tattoo”). Perry went so far as to say, “Of course tattoos can be copyrighted. I don’t think there is any reasonable dispute about that” (“Tattoo”).
Warner Brothers asserted that claiming copyright on a tattoo that has been applied to a person is akin to claiming copyright on that person’s face. Perry dismisses that defense, saying that a person with a tattoo cannot easily change it, but that the design of a tattoo is “entirely consistent with the copyright law” (“Tattoo”). Further, “with the tattoo’s use in the movie or promotional items like movie posters, iPhone apps or Big Gulp cups at 7-11, Mr. Whitmill has ‘lost control over the image he created,’ Judge Perry ruled” (“Tattoo”).
In the end, Perry asserted that enjoining the studio from releasing Hangover II would cause more harm to the “public interest” than allowing it to go forward with the copyright infringement (“Tattoo”). Perry found that Whitmill would be entitled to compensation regardless. According to the judge, “although the intangibles he’s losing can’t be completely known or quantified, there is some amount of money that will come close” (“Tattoo”). The remainder of Perry’s statement was extremely favorable to Whitmill’s interests. She determined that the use of an “exact copy” of the tattoo does not qualify as parody, as “the 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 “ (“Tattoo”). As lawyers for Whitmill stated, “Judge Perry recognized copyright law protects tattoos and that Warner Bros. has no permission to use Mr. Whitmill’s artwork in the movie” (“Tattoo”).
Ultimately, Whitmill settled with Warner Bros. for an undisclosed amount (“Tattoo”). Though there has yet to be a trial that codifies the argument that tattoos are copyrightable art into the common law, so far everything emerging from the courts suggests that body art falls into the category of visual art, in the same way that ink on a canvas would. However, copyright expert Timothy Bradley believes, “these [cases] will keep popping up and getting paid off” (Boudway).