Precisely mirroring a hypothetical I have often used in my Intro to IP class, along comes the “Mike Tyson tattoo” case. Tattoo artist Victor Whitmill apparently designed a distinctive tattoo for Mike Tyson’s face (see photo here), and the tattoo adorning actor Ed Helms’ face in the upcoming Warner Brothers’ film “Hangover 2″ looks an awful lot like the Tyson tattoo. Whitmill sues for copyright infringement. What result?
To answer that, we need to figure out if tattoos can be protected by copyright at all — a question no court (until now), to my knowledge, has ever confronted. The Copyright Act sets out the requirements for copyright protection: you have to have an “original work of authorship,” and it must be “fixed in a tangible medium of expression.” There’s not much question that Whitmill’s design is an “original work of authorship” — if it were painted on canvas, for instance, there’s no doubt that it would receive copyright protection. The harder question is whether Mike Tyson’s face is a “tangible medium of expression.”
The statute says that a work is “fixed in a tangible medium of expression” when its embodiment in a material object is “sufficiently permanent or stable to permit it to be perceived, reproduced, or otherwise communicated for a period of more than transitory duration.” By my reckoning, the tattoo here clearly fits the bill: once it’s on Tyson’s face, it can be perceived by others for more than a “transitory duration”; though the latter phrase could, I suppose, be so narrowed as to not include the “transitory duration” of, say, Mike Tyson’s life, that would be at odds with about a million copyright precedents. [The "transitory duration" language has been construed to eliminate things like a "buffer copy" of a file inside a computer, which is deleted after 0.01 seconds or so - or the evanescent images on a television screen, which vanish once they are projected onto the screen).
Indeed, I think Whitmill here, from the look of it, has a very strong infringement claim. He sought a preliminary injunction, enjoining any performance of the film until his claim was resolved - a very common tactic in copyright litigation. The court - wisely - denied it. Courts have allowed copyright plaintiffs to use this injunction tactic (which gives the plaintiffs, of course, an enormous bargaining club of a value far in excess of the value of the copyright claim itself) much too frequently in the past (a point made many years ago, if memory serves, in a very influential law review article by our own Eugene Volokh); at the same time, the court noted that Whitmill "had a “strong likelihood of prevailing on the merits for copyright infringement” and that most of the arguments put forward by Warner Bros. were “just silly.” So Whitmill is likely to prevail - but he'll get a couple of hundred thousand in damages (and not the $30 million (!!) he apparently sought in settlement discussions with Warner, when he still had hopes of obtaining an injunction against the film's release).
One interesting little side note: Esteemed copyright scholar David Nimmer submitted an odd affidavit on Warner's behalf, arguing (contrary to several statements published in his copyright treatise (Nimmer On Copyright)) that while the tattoo may be "fixed" on Tyson's face, the human face cannot be a "medium of expression" for purposes of the Copyright Act (citing, among other things, the 13th Amendment). [Perhaps this was one of the "silly" arguments the court was referring to].
Sparky says:
So now nobody can photograph Mike Tyson?!?
May 25, 2011, 11:24 amJohn Burgess says:
I see ‘Fair Use’ by way of parody here, with the artist having no recourse. The entire film is a parody and its parts are as well.
I’ve not read Warner’s argument, but if Fair Use isn’t in there, it needs new lawyers.
May 25, 2011, 11:37 amHouston Lawyer says:
So no tattoo artist can copy Tyson’s tattoo without this guy’s consent. Good luck enforcing that.
May 25, 2011, 11:46 amJWAdvocate says:
You can photograph Mike Tyson — you just can’t use his image to make money, without express permission. But that would have been the law, with or without the tattoo.
I think an interesting hypothetical, however, would be where Tyson — but not the tattoo artist — gave express permission to use the tattoo on his face. Does the tattoo artist’s copyright to a tattoo drawn on a person’s body supercede that person’s right to contract/sell their own likeness or image, if such an image includes said tattoo?
May 25, 2011, 11:46 amSteve says:
You can trademark a corporate logo, but as far as I know you can’t copyright one. Sure, you can have copyright in a painting, but I’m skeptical that any someone draws a certain shape or design on a piece of canvas, no one else is allowed to draw that shape. I feel like this belongs more in the trademark arena.
May 25, 2011, 11:48 amgooners says:
So I have several tattoos, and I couldn’t tell you the name of the people who put them on me. But those artists own the rights to that work? Shouldn’t I own them, if anyone does?
May 25, 2011, 11:48 amSteve says:
I don’t like the fair use argument. They’re copying the entire “work” and it’s for a commercial purpose, among other things.
May 25, 2011, 11:51 amUrso says:
The final, and in my opinion most important, factor in the Fair Use test is whether the allegedly infringing use has an “effect of the use upon the potential market for or value of the copyrighted work.”
So the plaintiff has two questions to answer: First, what is the “potential market” here? Is it people paying him to tattoo this design on their face? Is it people paying to look at Mike Tyson’s face because of the cool and unique tattoo? (in which case I don’t think that the artise is the proper plaintiff). Once he’s defined that market, how can he prove that this movie has adversely affected that market? If anything, he’s getting beaucoup free publicity (probably one of the real reasons behind this suit) which, if anything, is increasing the market value of his “creations.”
Put even more simply, what’s the harm here? If I make a copy of Blonde on Blonde (happy 70th Bobby!) I’ve theoretically cost Columbia Records $14 in lost sales. If I make a copy of this tattoo, what’s the harm to the plaintiff?
May 25, 2011, 11:51 amChrisHo says:
So the guy with the obvious copy of Tyson’s tattoo portraying Tyson in some form? While at first I laughed off the claim after seeing the comparison it is truly a copy.
May 25, 2011, 11:52 amNunzio says:
Did I need permission from Warner Bros. for my Yosemite Sam tattoo?
May 25, 2011, 11:52 amTatil says:
I think it depends on your contract. You may have only purchased the right to the tattoo on your body without right to reproduce it. Kind of like buying a DVD.
May 25, 2011, 11:53 amUrso says:
I would add that there are fair use factors weighing against the defendant too. Namely, I assume this is a jot for jot reproduction, meaning it’s a copy of the entire work – a big no-no from a fair use perspective. And it’s obviously a commercial, for-profit use; Hangover II is hardly a scholarly or scientific work.
There are all kinds of very interesting questions this raises. If the tattooer is claiming a copyright, does that mean that every photograph showing Tyson’s face is a derivative work? Is he going to have to start seeking injunctions every time Tyson shows up on TV or in the papers? Does this give the photographer a kind of third party version of the right to privacy tort? I think there are really good policy reasons for the court to consider tattoos to be unprotectable. However, I’m not sure there are valid statutory grounds for considering them unprotectable.
May 25, 2011, 12:01 pmgooners says:
I don’t remember a contract. More of a waiver. But who knows, I didn’t read the stuff.
In at least one shop I remember signing permission for them to use photos of my tattoo for their own shop promotion.
May 25, 2011, 12:02 pmSteve says:
The market would be, presumably, that people might pay him a license fee to get the tattoo themselves if he truly holds a copyright in the design. I don’t know whether the free publicity argument works, but my sense is that argument rarely holds water in the copyright context. The concern would be, among other things, that the movie suggests to people that it’s ok to go out and get the tattoo themselves without paying the licensing fee.
May 25, 2011, 12:06 pmAlan Lewine says:
But isn’t this tatoo based on some traditional tribal tat design? If so, does it have the requisite originality?
May 25, 2011, 12:09 pmMike says:
Let’s be clear here about something. The copyright claim has almost NOTHING to do with the use of the tattoo on Mike Tyson. There is a really, really, really, strong argument that there is an implied license for anything that is incidental to its placement on MT’s face. For this reason, MT’s appearance in the first movie did not draw a copyright infringement complaint from the artist. Nor do the thousands of pictures of MT.
The real infringement contention here is the use on Ed Helm’s face. The “implied license” can’t extend to a third party’s use of the tattoo that has been put on another person’s face. Thus, the defendants had to rely on defenses that are “silly” in this context: not copyrightable, parody, etc.
May 25, 2011, 12:10 pmpilight says:
This has been ruled on in a court case before. The Northern District Court of Illinois ruled in Gonzales v. Kid Zone, Ltd. and Transfer Technologies, Inc. (2001) that tattoos are subject to copyright. Marisa Kakoulas has written extensively on the subject.
May 25, 2011, 12:10 pmMatthew Schruers says:
True. In my opinion, there is no question that the defendants have a strong fair use case, given the obvious parody. However, that argument is fact-intensive and unlikely to win Warner the dismissal it would like at an early stage. (This is largely why, incidentally, Prof. Larry Lessig wrote that fair use is merely the right to hire a lawyer.)
Unlike fair use, non-protectable subject matter is entirely and unambiguously a question of law — thus Nimmer’s tactic. Just as in the AP v. Fairey “Obama HOPE” painting, there is the underlying question of whether the expression qualifies for protection in the first place.
As I mentioned over on Madisonian, it seems clear to me that skin qualifies as a medium of expression under Section 102 (Nimmer’s peculiar arguments notwithstanding). That is probably bad policy, but that doesn’t justify a contortionist reading of the statute.
I am curious why no one has explored whether the original tattoo is sufficiently original (in the sense of Feist v. Rural). Maori tattoos of this nature are fairly common, but I am no expert.
May 25, 2011, 12:18 pmTom in Houston says:
You can indeed have copyrights in a corporate logo, if it’s original and contains protectible expression. These rights co-exist with any trademark rights that spring from use as an indicator of source (the 9th Circuit’s reading of Dastar notwithstanding). There’s no per se exclusion from copyrightability for corporate logos. It’s true that common shapes aren’t copyrightable, but copyrights can inhere in expressive drawings or paintings that contain common shapes. You just filter them out when comparing the original work and the accused work.
May 25, 2011, 12:25 pmxuanka!! says:
I don’t think a fair use argument will work, because in order to be a parody, the infringing work has to make fun (or be critic of) of the original work itself, in this case, the infringing work is not used as a critic of the original work but only as a funny way to express an idea, that distinction was marked in a case involving “the cat in the hat.”
Also, if we analyse the 4 fair use factors, plaintiff wins!!, factor 1(purpose and character of use- commercial), 2 (the nature of the work- highly creative and expresive), and 3 (portion used- the entire work)…
Now, i would like to try a crazy argument in favor of the defendant, what about characterizing mike tyson’s face as a useful object, and the tattoo something that is not separable from the object?… haha, might work!!
May 25, 2011, 12:30 pmSoronel Haetir says:
Even if the the work performed on Tyson is not ruled to be a fixed performance, don’t tattoo artists generally first produce (often very detailed) images of what they are going to do before actually doing the tattoo? I would think those images would take care of the fixed representation problems if skin does not. Though by the language of the act I would certainly agree that tattoos should be of sufficient duration to qualify. I suppose the pre-tattoo sketches might be considered a different work, but I’m really not sure that should matter. The artist owns the image no matter what it is plastered on.
Now, a more interesting question, I think of what is transitory, how about sidewalk chalk art? It will be get washed away the next time it rains, but is certainly of more than fleeting duration.
May 25, 2011, 12:31 pmRagebot says:
A little off topic, but…..
Back in the day I was doing an Ironman Triathlon in Panama City with a muscle babe who I trained with. She got a tatt of the trademarked M-Dot that Ironman has trademarked. It was a fairly simple tatt, just a block “M” with a rather big dot on top of it. What surprised me most was how much more expensive it was than other tatts that seemed much more complex designs and colors to boot.
While a little off topic I also did an Ironman in Boulder, where a local feature is Iron Mountain. Originally the tri was named the Iron Mountain Triathlon, but the name was changed to 5280 (perhaps due to the World Triathlon Corporation also tradmarking 140.6 and 70.3, the distances of full and half Ironman tris), the elevation of Boulder, due to the claim by Ironman of dilution.
The point is that while a lot of stuff may go under the radar when a company like the WTC is aggressive a lot of restrictions can be imposed.
I know there is a difference between copyright and trademark.
May 25, 2011, 12:32 pmMatthew Schruers says:
On parody: one of the more defendant-friendly cases on parody was in fact the Supreme Court’s Campbell v. Acuff-Rose, 510 U.S. 569 (1994).
The infringement at issue was the 2Live Crew parody of Orbison’s “Pretty Woman.”
Urso is right, above, in saying that complete reproduction and commercial purpose may cut against fair use, but so too was 2 Live Crew’s parody a reproduction of the core of the original composition, and for a commercial purpose. But Campbell was decided unanimously in favor of the defendants.
In response to Xuanka!! above – your “useful object” argument is one posed by Nimmer in his affidavit. And yet it seems to me to go too far, since it means no protection can adhere to any work fixed on a previously “useful” object.
May 25, 2011, 12:35 pmUrso says:
Gonzales v. Kid Zone, Ltd. and Transfer Technologies, Inc. is the other way around. It found that a (temporary) tattoo could be an infringing work. It didn’t address whether a tattoo was worthy of protection.
301 F.3d 608, 608-9 for those of you keeping score at home.
May 25, 2011, 12:36 pmJoe Kowalski says:
Well, so says you!
May 25, 2011, 12:37 pmxuanka!! says:
But in that case, 2 live crew’s didn’t use the entirety of the copyrighted work, so factor #2 wighted in favor of the defendants, i think that is distinguishable from this case.
Also, the song clearly makes a critic of the “pretty woman” song, while in the mike tyson tattoo case, the critic of the original work is not that clear.
May 25, 2011, 12:41 pmUrso says:
Ah but in Campbell 2 Live Crew was on the right side of the parody/satire distinction. I don’t think the Hangover II is. Although they could certainly argue that they’re making a social sature of the kinds of people who get these ridiculous quasi-tribal tattoos, and is therefore a comment on the work itself…
May 25, 2011, 12:47 pmJohn Burgess says:
I’m sticking with Fair Use via parody. Not only does the actor’s image and character parody Mike Tyson, but it parodies that he’d get such a lame tattoo. That Tyson approved the parody–as parody–makes the plantiff’s case unsustainable, in my book.
So okay, maybe the defendant is guilty of crossing the memes, but I really don’t see a copyright violation in there.
May 25, 2011, 12:47 pmgooners says:
But they use the tattoo, not the face.
What if the tattoo is not a work of art, but a distinctive feature of Mike Tyson? Let’s say it’s another distinctive feature f a celebrity – a nose or ears or hairstyle – is there a right to use that? What about in parody? In that case the parody would more clearly be of the celebrity, not of the feature.
May 25, 2011, 12:48 pmgooners says:
I was thinking that too, but then all art is influenced by previous work. I think that might be similar to saying a 12-bar blues song can’t be copyrighted, and that doesn’t sound right.
May 25, 2011, 12:52 pmxuanka!! says:
Well, my argument goes to the fact that useful articles that are not separable from their useful functions are not copyrightable, if mike tyson’s face is an useful article (ha!!) and the tattoo is not physically or conceptially separated from the face, it would not be copyrightable. i know is a stretch, but i’m just excercising my “far-fetched argument” muscles!
May 25, 2011, 12:53 pmdb says:
You would have to see the movie to knwo for sure, but from the previews the original work is pretty clearly being directly parodied. By putting the Tyson tattoo on the nerdy Ed Helms character’s face, the movie is making a critique of how rediculous the tattoo is.
May 25, 2011, 12:55 pmUrso says:
I think a tattoo definitely has the necessary originality, as Feist sets an extraordinarily low standard for creativity. The more interesting question there, celebrity-body-wise, is plastic surgery. If someone walks into her plastic surgeon’s office and says “give me the same bust Lindsey Lohan’s doctor gave her!” is she soliciting a copyright violation?
May 25, 2011, 12:57 pmAnonsters says:
Then he should be prosecuted to the fullest extent of the law!
May 25, 2011, 1:04 pmMatthew Schruers says:
I agree that 2Live Crew and Suess Enters. v. Penguin, (the “Cat in the Hat” case you referred to), were on opposite lines of the parody/satire line, but I don’t agree that this tattoo is on the satire side.
Suess Enterprises came out as it did because the infringing work used Suess to criticize OJ Simpson, rather than Suess. Hence, satire. Here, however, Hangover II replicates Tyson’s ridiculous tattoo to mock Tyson’s ridiculous tattoo.
Xuanka!! said: “while in the mike tyson tattoo case, the criti[que] of the original work is not that clear.”
I think the critique is putting the same tattoo on a goofy white guy.
Also – on parody, the infringer is permitted to take as much of the original as is necessary to reference the original. In this case, that seems to require taking just about all of it.
May 25, 2011, 1:06 pmUrso says:
This is an interesting question. Realisitically, the Hangover II guys probably could’ve achieved the same effect with a generic tribal tattoo that kinda looks like Tyson’s tattoo. This guy’s copyright, to the extent that it exists, is very narrow – he certainly has no broad right over all vaguely tribal-looking tattoos.
If there are even a few differences between the real tat and the parody one, it may be different enough to the point where it’s not even an infringement.
May 25, 2011, 1:27 pmCrazyTrain says:
You can definitely copyright a corporate logo. No question whatsoever about that. The image of Mickey Mouse is a trademark and logo for Disney. But it is also a copyrighted image. This is not controversial in the least bit.
May 25, 2011, 1:29 pm4C says:
I doubt that Whitmill has standing.
Surely, unless he’s claiming copyright to Mike Tyson’s face, the rights to said tattoo devolved to Tyson when ink was put to skin, as a ‘paid work for hire’.
Thus, whosoever wants to claim ownership over said face and permanent decorations thereon should go discuss it with Mike Tyson.
After first insuring their own ears, of course :-)
May 25, 2011, 1:39 pmChris Travers says:
This makes me want to be a tattoo artist and do celebrity tattoos! Hollywood directors be forewarned and contact me before using my
slavesclients in your work.I really think that given the nature of a tattoo, fair use ought to be given an expansive interpretation.
May 25, 2011, 1:56 pmSteve says:
I don’t think the work for hire doctrine applies here. IIRC, courts look to agency law to determine whether an artist was an employee or an independent contractor for (c) purposes, and here, not only might Whitmill have independently recorded the image on paper before applying it to Tyson’s face (thus creating the original work outside the context of the particular economic relationship with Tyson), but it is clear that Whitmill was not drawing a salary from Tyson, receiving traditional job “benefits” from Tyson, acting as Tyson’s agent, etc.
May 25, 2011, 2:00 pmKenton A. Hoover says:
Most tattoos are rendered to paper during the design phase since the customer wants make sure what they’re getting. That would seem to satisfy the “fixed in medium of tangible expression” requirement.
May 25, 2011, 2:02 pmRob S says:
Does it alter the copyright analysis if, for whatever reason, it was unlawful to put the mark on the medium? For example, it seems to me that a graffiti artist should not have a claim of copyright to a tag he unlawfully affixes to another’s property. I ask this because I know that, at least in some states, it’s unlawful to tattoo the face. If Mike Tyson received his tattoo in one of those states, would that limit the artist’s copyright claim?
May 25, 2011, 2:15 pmkimsch says:
You can’t copyright fashion designs. Wouldn’t tattoos be closer to fashion?
May 25, 2011, 2:16 pmxuanka!! says:
Well, i believe that when the totallity, or a substantial part of the work is used, even if is for a critique, it counts against the infringer in the fair use analysis, however, when we have big parody cases, the other factors ussually outweight this 3rd factor., but in this particular case, i don’t think the other factors help the defendant’s cause. The court in MGM v. American Honda (james bond case) stated that ” the Court must look to the quantitative and qualitative extent of the
copying involved. A parodist may appropriate only that amount of the original
necessary to achieve his or her purpose. ” in this case, the totallity of the circumstances say that they probably didn’t have to copy the entire tattoo to make their point. (which is arguable)
P.S. – Sorry about the “critic”, sometimes i think in spanish and write in english, haha
May 25, 2011, 2:17 pmsteve says:
The Warner Brothers copy of the tattoo is clearly infringing and not excused by fair use. As David notes in the original post, WB is on the hook for “several hundred thousand” in damages, just for the direct infringement.
The more interesting question is, can Whitmill collect from movie theaters if they go ahead with showing the movie? If he can get Warner for copying, he should be able to use the same arguments and facts to sue the theaters for public performance and public display, which are also infringements on his exclusive rights.
Of course the theaters probably have indemnity from Warner Brothers. So add that to the WB total bill- statutory damages for willful infringement, and fees and sanctions for failure to mitigate damages.
At $150,000 per count, at one count per screen the movie shows on (say a conservative 2000 screens), that works out to three hundred million dollars.
May 25, 2011, 2:29 pmEponymous Coward says:
That first paragraph may be better placed in the other thread today, about this being the Conclusory Blog. The first sign that something isn’t clear is when it is introduced with the word ‘clearly’.
Also, this miscalculates statutory damages. Under Section 504, they are calculated on the basis of works infringed, not the number of infringements. If the plaintiff goes the statutory route, he gets one award of up to $150k, because only one work has been infringed.
May 25, 2011, 2:46 pmanomdebus says:
Regarding using the entirety, I think the joke only works when there is no doubt it was the guy getting Mike Tyson’s tattoo (not vaguely looks like), or that he wanted to get Mike Tyson’s tattoo, but the artist totally screwed up. I don’t think the second scenario works as well, because it has to be clear what it was supposed to be, but bad enough that it looks awful.
May 25, 2011, 2:46 pmUrso says:
So tell me, steve, are you representing Mr. Whitmill on an hourly basis or taking a percentage cut?
May 25, 2011, 2:48 pmSteve says:
By the way, I am the Steve who does not quite understand IP, not the Steve who believes this is an open-and-shut case. I still doubt that the fair use defense works though.
May 25, 2011, 2:52 pmanomdebus says:
A sticking point would seem to be: can you use fair use when parodying a subject that contains a copyrighted work without having to directly parody the copyrighted work?
In this case, there is little else they could do to Ed Helms to make him appear to be trying to emulate Mike Tyson.
Btw, I have no problem with the tattoo being copyrighted. If he wants to keep his work from being resold (for example in temporary tattoo form), I think that makes sense.
May 25, 2011, 2:54 pmSuperSkeptic says:
But how can any two tatoos be exactly the same?
May 25, 2011, 2:55 pmChris Travers says:
I am going to make a different argument for fair use here. The traditional fair use analysis is only one method the courts use in looking at fair use, typically with regard to certain forms of works. When it comes to other fair use questions (for example in software), the courts tend to have a markedly different analysis.
In non-traditional areas of copyright (software being the best example) courts tend to look at the overall impacts of a fair use rule and determine whether or not it serves the public interest to allow copyrights to be enforced in a specific way. Thus there are plenty of cases of commercial, for profit derivative works which have been ruled to be fair use. Typically, as far as I can make sense of the pattern, the courts in software case look to:
1) Is the primary market (i.e. the market for the actual license of the software as such) cannibalized by the work?
2) Are the artistic interests of the copyright holder unduly impacted by the new work?
I believe these considerations are behind cases such as Galoob v. Nintendo, Sony v. Connectix, and others. In other words, a secondary market for sales of licenses is not enough. It has to cannibalize the original market in a way which unfairly prejudices the copyright holder. (This is why I think Stallman is out to lunch in his claims of how expansive the GPL is.)
Now, the major issue with software is that software is functional, while tattoos, movies and books are far more expressive. Thus copyright on a recipe or a piece of software tends to be weaker than it would be for a painting or a poem. Tattoos seem to fall in that later category, but I think there is an important reason to treat them as less expressive (to the copyright holder) than traditional copyrighted items. I believe that the tattoo design can be seen as primarily functional from the perspective of the designer and thus entitled to similar protections as are afforded software.
People obtain tattoos as a form of self-expression, as a way to mark their identity on their bodies. This is not fundamentally different than circumcision among Jews, for example, where the rite engraves the Covenant onto the male body. Many, many human cultures have ways of doing this and in our individualistic culture, we often do this through personal tattoos.
The goal of designing a tattoo then is to facilitate an individual’s attempt to engrave on his or her body a specific message the individual wishes to convey. Now this is different from commissioning a piece of art for a private collection because the tattoo is of a deeply personal nature to the individual who commissions it and that the designer effectively gives up several of the important rights that traditionally come with copyright, such as the right to ban public performances.
Courts have long held that copyright can’t be a door into strictly controlling things that are beyond the nature of copyright. Holding that tattoos are to be given the same protections as paintings undermines that holding because it gives unparalleled control over depictions and portrayals of the individual who now has the tattoo. I don’t believe this is permissible under current copyright doctrines and I would hope the courts would afford tattoos only limited copyright protections.
May 25, 2011, 3:01 pmJoeSixpack says:
I think that people who say a generic tattoo would have worked are not getting the joke. Mike Tyson actually appears in the movie, and Helms gets the tattoo during a night of drunken debauchery that he cannot even remember. They are clearly making fun of Mike Tyson’s tattoo, not just any generic tattoo. He went out and got so drunk that he got Mike Tyson’s crazy tattoo on his face. To me this is obvious parody.
May 25, 2011, 3:01 pmJoeSixpack says:
I think people are also misunderstanding the commercial purpose test. Parody can be performed for commercial gain and still be fair use. Otherwise things we take for granted like Saturday Night Live would be shut down. WB is not selling copies of the tattoo for profit based on the aesthetic value of the tattoo itself. They are making fun of the tattoo in a movie that happens to have been produced for profit.
May 25, 2011, 3:05 pmMark N. says:
If the artist prevails, does this open up a new avenue for bootstrapping stronger publicity rights than American law typically grants? If I get a tattoo on my face (or elsewhere on a visible part of my body) with a design whose copyright I myself own, can I now use that copyright to control who may publish photographs of me? Does it, in essence, give me a way of copyrighting my face, despite the fact that American law (contrary to some European countries’ laws) normally refuses to grant that kind of proprietary right in my own likeness?
May 25, 2011, 3:12 pmDjDiverDan says:
Two thoughts – First, the first notion that pooped into my head was “who really owns the copyright to Mike Tyson’s tatoo? If the Tattoo artist was remunerated for the work, why isn’t this governed by the work for hire doctrine, and thus governed by the contract between him and Tyson?” I see that others had the same thought, but I was not aware that there was a distinction between an employee and independent contractor in the work for hire doctrine; I had understood that it was a matter of Contract. After all, I can hire an Architect to design a unique home, and insist that the Architect convey ownership of the copyright to the plans to me (though most Architects will fight like mad over this – the AIA Contract forms all have the Architect retaining ownership of the copyright, with the guy who paid an hourly rate for the work to create the plans getting simply a non-exclusive license to use the plans for a single construction), in order to preserve the uniqueness of my home.
My second thought was that WB ought to countersue the Tattoo Artist (and join all other tattoo artists it can locate) to obtain infringement damages for every Bugs Bunny, Roadrunner, Wile E. Coyote, or Petunia Pig Tattoo they’ve ever applied (or at least every one done within the applicable limitations period).
May 25, 2011, 3:15 pmUrso says:
The work for hire doctrine is bizarrely specific with respect to independent contractors. It requires not only that you have a contract containing the magic words “work for hire” but limits works for hire to the following types of works:
A tattoo doesn’t fit into any of those categories. Therefore, even if the plaintiff had a work for hire K with Tyson, it would be unenforceable under the Copyright Act.
May 25, 2011, 3:25 pmCJColucci says:
Suppose I make a movie about Mike Tyson? I’ll want my actor to look like the real Mike Tyson, and the real Mike Tyson has a distinctive tatoo. Do I have to tell my make-up person to use a vaguely-similar tatoo rather than an accurate one?
May 25, 2011, 3:26 pmDocW says:
When actors use illegal drugs in a movie they are not arrested for illegal drug use/possession. I would have to assume this is due to the fact that they are not actually using drugs. Similarly, Ed Helm’s does not actually have a Mike Tyson-esque facial tattoo. Therefore has he really infringed on copyrights? The actual act was never committed in reality.
May 25, 2011, 3:31 pmAultimer says:
My plaintiff theory is that Tyson has an implied license to have the facial tattoo reproduced in a movie. The copy/derivative on Helms’ face is a single infringement, as is each copy (frame?) of the movie and each instance of public display.
On the defendant’s side, I like the analogy to recipies and fashion design. Failing that, maybe the single infringement on Helms’ face isn’t a parody of the original work, but the movie is parody of Tyson’s licensed display of the work. Unclear if that excuses any infringement.
May 25, 2011, 3:36 pmepeeist says:
I recall having found in a Google search a few years ago for a major research paper (on rights of publicity/personality, this was just an interesting side issue I mentioned; the title of my unpublished (Master’s) paper was “Schwarzenneger vs. the Terminator” – perhaps in the current environment I should see about updating it and seeing if I can publish it somewhere…) an article on a body-modification website by a lawyer dealing with tattoos and copyright.
I of course included a reference to the article and website in my paper, together with a warning in the footnote that much of that site was NSFW to say the least (being at work right now I am not going to replicate the search, as I recall it was bmezine or something like that).
I don’t have my paper handy either, as I recall I discussed the potential for interaction between personality rights and copyright or trade-mark rights (vis-a-vis tattooes of trade-mark images, logos, people having sponsored tattooes as has occurred in a few cases) and the prospect of injunctive relief being denied due to the effects of such an injunction on the physical body of the person with the tattoo (which would lead to the question, would damages become a de facto method of enforcing alteration of the tattoo even though no injunction was awarded?).
May 25, 2011, 3:38 pmxuanka!! says:
Well, another theory for the defense is the “merger” doctrine, the idea of a tribal tattoo in the face can be expressed in only limited ways therefore the idea and expression will merge, and since ideas are not copyrightable, that tattoo wouldn’t be copyrightable.
May 25, 2011, 3:48 pmIspep Teid says:
I hope that was intentional.
May 25, 2011, 4:09 pmnoob goldberg says:
The inventor of the tramp-stamp is going to make a windfall if this case is successful.
May 25, 2011, 4:13 pmCan You Copyright a Tattoo? | Daily Libertarian says:
[...] the rest of Post’s analysis right here. For a skeptical take on copyright laws, see Jesse Walker’s classic feature “Copy Catfight: [...]
May 25, 2011, 4:36 pmByung Kyu Park says:
There may be, I think, an additional restriction: you may be restricted from distributing copies of the photo—even non-commercially (see: Capitol v. Thomas among others of similar nature that have gone to trial).
Assuming the artist now registers his copyrighted work, he’s entitled to additional damages beyond just lost revenue. Maybe he won’t go after non-commercial infringers, but, well, we’d be at his mercy.
May 25, 2011, 4:37 pmalkali says:
Having read this affidavit, I think it makes some good points. Consider:
May 25, 2011, 5:41 pmChris Travers says:
Those are good points. However is that sufficient to say that the tattoo cannot be copyrighted or just that fair use must be extremely extensively defined? Of course at some point those have practically the same effect.
May 25, 2011, 7:30 pmleo marvin says:
Does the “Steve” who’s commented here for some time have a trademark claim against the “Steve” who recently started posting under that name? I know I’ve been confused more than once.
Not that I blame the second Steve. Allowing multiple users to post under the same name seems like a flaw in the blogging software. I’m surprised it hasn’t happened more often. (Maybe it has, and I haven’t noticed it?)
May 25, 2011, 7:37 pmByung Kyu Park says:
Just in case someone wants to do that, I wanted to note that WordPress (the blogging software used on VC) keeps track of commenter IP addresses. If you are going to impersonate other commenters, at least have the sense to use TOR. ;)
I think the default comment feature in WordPress is more like a guestbook than anything else—it’s not meant to be an authenticated thing—although you can’t write “2008″ for the year on this guestbook. If VCers wanted to make it so, they can close commenting for anonymous members of the public and make registration a requirement for commenting, though. Another blog that I follow that uses WordPress (HotAir.com) does exactly that.
May 25, 2011, 7:43 pmByung Kyu Park says:
Oh, and another thing. I think if you use Gravatar, then your avatar will relatively uniquely identify you (even when different commenters go by the same name), as long as no one else guesses your email address.
I guess someone could create a second Gravatar account with the same image … but this involves more effort and could expose that person to civil liabilities (i.e. copyright infringement).
May 25, 2011, 7:49 pmStrict says:
“When actors use illegal drugs in a movie they are not arrested for illegal drug use/possession. I would have to assume this is due to the fact that they are not actually using drugs.”
Not always.
For example, scenes depicting marijuana use often involve actual marijuana use.
They aren’t arrested because nobody called the cops. In most places you have to be caught red handed using/possessing drugs to be arrested for use/possession – film footage isn’t good enough.
May 25, 2011, 8:17 pmChris Travers says:
Assuming a valid copyright claim to the image in question…..
May 25, 2011, 8:34 pmKatahdin says:
Really? Don’t thinks get a bit, er, silly by about take 42?
May 25, 2011, 9:02 pmByung Kyu Park says:
So their “acting” will look even more natural. Isn’t that a good thing? ;)
May 25, 2011, 9:18 pmDavid M. Nieporent says:
No more than buying a John Grisham novel should give you the rights to the text.
May 25, 2011, 10:34 pmDavid Schwartz says:
The same work can be subject to copyright in one context and exempt from copyright in another context. A good example would be the Toner Loading Program at issue in Lexmark v. Static Controls. If you accept Nimmer’s arguments, the conclusion would be that a tattoo on the human body can never serve as the fixed form to establish copyright in the first place nor could one ever violate copyright. It would make a tattoo the equivalent of a thought — I cannot create a work that gets copyright protection in my own mind, nor can I violate a copyright by creating a derivative work in my own mind.
May 25, 2011, 10:39 pmDavid M. Nieporent says:
I don’t see how those are good points (except for the last one about terminating a license) because they all assume that the copyright stems from the tattoo on the face, as opposed to (as several people pointed out above) the draft that the artist presumably created before he inked Tyson. Also, most of them can be dealt with via the implied license doctrine.
May 25, 2011, 10:39 pmUrso says:
Nimmer doesn’t “assume” that, he reads directly from the plaintiff’s copyright application, which refers to a “3D Object” on which the tattoo is affixed — ie, Tyson’s face. And from the first sentence of the complaint, which refers to the “original design [plaintiff] created on the upper left side of former world heavyweight boxer Mike Tyson’s face.” We’re the ones who are assuming that a sketch existed in the first place and that it hasn’t been long since tossed in the trash. If plaintiff has such a sketch, he hasn’t pleaded it.
I do have issues with Nimmer’s “declaration” though. It’s not really a declaration, which is something filed by witnesses with firsthand knowledge of certain facts relevant to the case. It’s more like an expert report or, really, a legal brief. If Nimmer wants to enroll as counsel and make his legal arguments, he should do so.
May 25, 2011, 11:31 pmGhwb says:
Where’s the work for hire discussion? MT paid a nice price I imagine for the design and application of the ink. He may own the whole thing, copyright and all.
May 26, 2011, 2:16 amDeoxy says:
I can’t see how this can work out in the artist’s favor without SEVERELY damaging the entire tattoo industry: if I want to make a likeness of Mike Tyson, even with Mike Tyson’s permission, I have to go ask the tattoo artist? That is, Mike Tyson no longer owns HIS OWN FACE?!?!?!?!?
Um yeah, I just can’t see that happening.
May 26, 2011, 11:47 amChris Travers says:
I am not 100% sure I accept Nimmer’s arguments except that I think he raises serious questions about the application of copyright law to tattoos.
As I say, I think the solution here is to afford tattoos only a very weak copyright (meaning fair use is very expansively interpreted) when on the human body.
Basically if we say “depiction of a person with tattoos is always fair use, and it is fair use to have a second artist add additional parts to a tattoo” then a lot of these problems go away.
I would be very concerned about giving someone intellectual property rights to something etched into someone else’s body in this way.
May 26, 2011, 8:01 pmSPQR says:
David Nimmmer has never really been up to his father’s standards of scholarship since he took over the treatise, IMO.
With respect to this:
I would point out that there is a Ninth Circuit opinion, MAI Systems v. Peak Computer, 991 F.2d 511 (9th Cir. 1993) that held that copying a program from storage into memory to run it was enough “copying” to support an infringement action.
May 26, 2011, 9:43 pmleo marvin says:
That’s praising with faint damnation.
May 27, 2011, 1:47 amDuplicating Tyson’s tattoo at My So-Called Penis says:
[...] the tattoo talent who designed Tyson’s tattoo is ticked off and suing. The Volokh Conspiracy considers the merits of the case. The Copyright Act sets out the requirements for copyright protection: you have to have an [...]
May 27, 2011, 3:34 pmChris Travers says:
Does that mean I need a copyright license to view any web page on the internet?
If a web site’s terms of service expressly disclaim any copyright license over the web content, does that mean any viewing of the site is infringement?
if so, I am going to set up a web site with a click-through “Terms of Service” document which does this, and register the copyright for the site. Then I will sue anyone who clicks “I Accept.”
May 28, 2011, 1:21 pmByung Kyu Park says:
Not sure if there’s been a definitive precedent, but some have made a claim that comes relatively close, that you can’t view the HTML source without a license.
I believe the case cited by SPQR is the basis for the common practice of making you sign EULAs to use a software, even though you purchased your copy of the program and have first-sale rights to it.
May 28, 2011, 1:26 pmChris Travers says:
I am not convinced of that. I think it is fairly obvious that the EULA is a click-wrap contract between the manufacturer and the user. Are you aware of any cases where EULA violations which did not involve distribution of the software (for example, not having enough client access licenses or the like) were treated as copyright violations? I can’t think of any and in fact I can think of counter-examples, such as Sony v. Connectix.
It’s not clear to me that shrink-wrap contracts regarding use of, say, lawn mowers, would be less enforcible than clickwrap contracts involving software.
May 30, 2011, 8:12 pmChris Travers says:
I am not convinced of that. I think it is fairly obvious that the EULA is a click-wrap contract between the manufacturer and the user. Are you aware of any cases where EULA violations which did not involve distribution of the software (for example, not having enough client access licenses or the like) were treated as copyright violations? I can’t think of any and in fact I can think of counter-examples, such as Sony v. Connectix.
May 30, 2011, 8:54 pmByung Kyu Park says:
Hm.
That was the impression I had from reading something about copyright in software a long time ago (it was something free software related; I don’t remember details as it was years ago), but on brief search, I find counterexamples too, in particular, ProCD v. Zeidenberg, where a clickthrough contract was enforced even though the product wasn’t protected by copyright laws.
So the impression I had must’ve been wrong. ‘something new everyday.
May 30, 2011, 9:36 pmByung Kyu Park says:
BTW, how is Sony v. Connectix a counter-example? I thought that case dealt with reverse engineering and clean room design.
May 30, 2011, 9:41 pmJason Sykes says:
Two other things to think about:
1) Could Tyson’s tat be a work for hire? Tyson is high profile enough that a lawyer might have had the tattoo artist sign a work-for-hire agreement at the time.
2) If the tat is copyrightable (and I think it is) it is also likely a “work of visual art” and –> moral rights attach. –> if Mike Tyson ever wanted to get it removed/changed the artist might be able to get an injunction. Now *that’s* a case I’d like to see litigated.
And for those interested in further reading, check out Christopher Harkins’ “Tattoos and Copyright Infringement: Celebrities, Marketers and Businesses Beware of the Ink”; Lewis and Clark Law Review, Vol. 10:2 at 314-328 (2006) (arguing that tattoo artists are not likely to be considered employees and tattoos are not likely to be considered works-for-hire but conceding that there is no case law either way).
May 31, 2011, 2:33 amCopyright Law says:
[...] of interesting commentary on the Hangover II tattoo case. David Post says it “precisely mirror[s]” a hypothetical he uses in his Intro to IP class. He [...]
June 1, 2011, 9:20 pmTina says:
Love all the legal talk… clearly most of you are incredibly knowledgeable of Copyright laws. What none of you have addressed is the actual process of tattooing. I absolutely doubt that during the several hours of actual tattooing time, Mike Tyson was silent and did not in any way “adjust” the artists artwork. A tattoo is a combination of the artists perception and the person’s acceptance. In other words, tattoo artists don’t create the image without input from the consumer. Consumers generally modify the artists work to fit the concept they are wanting on their own body. In essence, the creation of the image has 2 artists. Tyson, having the ultimate decision, becomes the ultimate creator of the artwork. It is not the tattoo artists “original work.”
June 9, 2011, 8:19 pmEmma says:
Tina, I think that’s a really good point. I wonder if the artist’s copyright ownership and rights differ between situations 1) where the artist creates an original work on their own and later on, somebody comes along and purchases it, and 2) a person commissions an artist to design something for them, and they have input on the design (as it usually would be for a tattoo).
June 17, 2011, 1:46 pm