By Wendy Marsh
The tattoo artist who created and inked the now-famous tattoo on the face of Mike Tyson has sued Warner Bros. for copyright infringement, based upon its use of a similar tattoo on the face of actor Ed Helm in "The Hangover 2." The artist, S. Victor Whitmill, has requested an injunction to halt the release of the Warner Bros. film pending the outcome of the case. In the film, Ed Helm's character wakes up in a bathtub following a bachelor's party to unexpectedly find he had acquired a tribal tattoo on his face at one of the previous evening's events.
Copyright law provides that in order to prove copyright infringement, the plaintiff must demonstrate, 1) ownership of a valid copyright, and 2) copying of the protected elements of the copyrighted work. In this case, Mr. Whitmill may be able to successfully prove himself to be the owner of Tyson's tattoo design. In this regard, the pleadings assert that Mr. Whitmill had Tyson sign a release granting Whitmill rights in the tattoo design and, to prove he was the tattoo artist, had pictures taken of himself placing the tattoo on Tyson's face. In 2003, Whitmill registered the tribal tattoo design with the Copyright Office. Whether the tattoo in the movie is sufficiently similar to Tyson's to constitute "copying" appears likely, as the movie pre-release outlines indicate the entire purpose of the scene in the movie is to associate the tattoo on the actor's face with that of Mike Tyson.
Warner Bros. is likely to assert in its defense that its copying of the tattoo was a "fair use" of Whitmill's design, in that it was created to ridicule the Tyson tattoo. To successfully demonstrate parody, and therefore exempt from copyright infringement, Warner Bros. would need to prove that its use of Whitmill's design was intended to "comment on" and preferably also "transform" the Tyson tattoo copyrighted design into something with a different purpose or character. It will be interesting to see whether the "commentary" claimed by Warner Bros. is anything other than not to let your friends lead you to a tattoo parlor during a bachelor party.