Tattoo artist S. Victor Whitmill couldn't block this weekend's release of “The Hangover Part II.” But a judge has indicated that he has a strong case against Warner Bros. for infringing his copyright in a facial tattoo he designed for Mike Tyson.

Whitmill's lawsuit appears to be only the second in which a tattoo artist has claimed copyright protection for a work of body art. He alleges that Warners misappropriated “one of the most distinctive tattoos in the nation” by reproducing it in “Hangover 2” on the face of a character played by actor Ed Helms.

At a hearing May 23, U.S. District Judge Catherine D. Perry said an injunction on the theatrical release of the movie would inflict irreparable harm on theater owners. “[T]he 3,600 theaters that have contracted to exhibit the movie will not be able to find a replacement movie to show on the critical Memorial Day holiday weekend,” Warners warned in a brief.

But Whitmill is taking encouragement from Perry's indication that he will ultimately prevail on the merits of the case.

“Overall we are very pleased with today’s result,” his lawyers said after the hearing. They quoted Perry as saying, “Most of the defendant’s arguments against this are just silly. Of course tattoos can be copyrighted.”

Tyson sported the “distinctive” tribal tattoo when he appeared as himself in the first “Hangover” movie. According to Whitmill, the tattoo cannot be reproduced on someone else's body without his permission.

Warners lawyer Frederick J. Sperling (Schiff Hardin, Chicago) argued that finding the tattoo copyrightable would raise serious constitutional issues and “amount to owning a copyright in Tyson's face.” By enacting the Copyright Act, he said, “Congress never remotely intended to provide any author with the ability to control another person's body.”

That argument, though, missed Whitmill's key point that the case is not about Tyson but “about Warner Bros. appropriation of Mr. Whitmill’s art and Warner Bros. unauthorized use of that art, separate and apart from Mr. Tyson.”

“Warner Bros. — a company that aggressively guards its copyright portfolio through lawsuits across the nation — should have known that it needed the artist's permission to reproduce the tattoo onto its character's face,” Whitmill attorney Pete Salsich (Brickhouse Law Group, St. Louis) said in a brief.

Warners' better argument is that the reproduction of the tattoo is a fair use parody of the Tyson original because it pokes fun at the contrast between Tyson's toughness and the meekness of Dr. Stu Price, the character played by Helms.

As “Hangover 2” progresses, Sperling said,

Stu gains assertiveness and toughness, which culminates in his confronting his future father-in-law, taking on an assertive personality and, in effect, finding his “inner Tyson” and “growing into” his tattoo.

Salsich tells On Point that Perry “completely dismissed the fair use/parody arguments, recognizing that the movie did not comment on the copyrighted art in any way and used an exact copy of the copyrighted art when any other facial tattoo would have advanced the plot in the same way.”

But Perry may have missed the creative point. As Sperling put it, using an exact copy of the tattoo was necessary to “conjure up Mike Tyson and his appearance in the first film and to use Tyson as a symbol of Stu's emerging toughness.”

By Matthew Heller
5/24/11