For the “Life Imitates Law School Exam” File: Tattoo Copyright

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].

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