Advertising Law Blog

A Missouri tattoo artist named S. Victor Whitmill sued the studio producing the eagerly anticipated movie The Hangover II because, get ready for this, the movie and its promotional material includes reproductions of the tattoo that Whitmill inked onto the face of boxer-turned-thespian Mike Tyson. Whitmill asked a Missouri for a preliminary injunction to delay the release of the movie to 3,600 theaters. On May 24th, his request was denied. The court did not immediately provide and explanation for its decision. Still, the lawsuit will proceed with Whitmill seeking monetary relief. Whitmill claims copyright infringement for the depiction of the tattoo, and also reserved the right to add a libel claim after he sees the movie because he heard that the tattoo artist shown in the movie was depicted as crazy and that will somehow make viewers think he is crazy.

Whitmill put the tattoo on Tyson's face on February 10, 2003, just twelve days before Tyson knocked out Cliff Etienne with the ink practically still wet on his face. The tattoo was a Maori tribal design from New Zealand. Fast forward to the present day, and Tyson, now retired from boxing, filmed his role in The Hangover II. As part of the movie's plot, one of the other characters meets up with Tyson, goes on a bender, and wakes up with the same tattoo.

When Whitmill got wind of the plotline of the forthcoming movie, he registered the design of the tattoo with the copyright office. The copyright certificate was issued in April 2011, and Whitmill filed suit about two weeks later, with intent to halt the release of the film. Tyson himself is not a party to the lawsuit, as Whitmill did not sue him, and Tyson makes no claims against Warner Bros., the movie's producer.

While the lawsuit raises some novel issues about an artist's right to profit from his creations-- "One of the things that the copyright law gives you as an artist is control over your work - and he lost control here," one of Whitmill's attorneys told the New York Times- it seems doubtful Whitmill can achieve a full victory on his claims, because the logical extension of a full victory would give Whitmill control over Tyson's face.

The two strongest arguments against Whitmill's suit are that the copyright is invalid, and that its depiction is permissible fair use/ parody. Warner Brothers also noted that Whitmill did not protect his rights when Tyson appeared in the first Hangover movie, as well as a Tyson documentary and the movie Rocky Balboa.

A tattoo on a human body should not be subject to copyright protection, Warner Bros. argued, because validating such a right would allow Whitmill to "dictate whether and how Tyson could appear in magazines, on television, in film and on the Internet, and could potentially prevent Tyson from removing or changing his tattoo... if Tyson chooses to obtain an adjacent or overlapping tattoo on his face... Tyson will have violated plaintiff's exclusive [copyright]." Because the tattoo is incorporated into Tyson's head, the copyright should not be allowed, argued Warner Bros. "From helping him to complete the most mundane daily activities to enabling him to win boxing championships, Tyson's body has an intrinsically utilitarian function," read one of the more creative passages yielded in defense of this rather absurdist lawsuit.

As for the fair use argument, Warner Bros.' memorandum of law stated, "Hangover II is transformative parody and satire. Its use of Tyson's tattoo is precisely to give it new expression meaning and message... the Stu character [who gets the Tyson-like tattoo is] a timid, frightened and milquetoast dentist with a decidedly conservative lifestyle." In short, the Stu character is the opposite of Tyson's former public persona and "the theme of Stu's transformation from lacking to developing toughness is central to the film." Not even argued was that Whitmill's work is unoriginal. Some Maori commentators from New Zealand have expressed outrage that Whitmill is claiming ownership of a Maori design.

Although the preliminary injunction was denied and the movie will be released as scheduled on May 26th, the lawsuit will go forward and will likely result in a precedent-setting copyright decision.