Is Tattoo Removal a Cure for Copyright Infringement?Tuesday, May 31, 2011 18:16
Tatttoo artist S. Victor Whitmill (Whitmill) tried to stop Warner Bros. Entertainment, Inc. (WB) from releasing the film The Hangover II last weekend. Whitmill claimed that WB’s use of the tattoo Whitmill allegedly created for the first Hangover film in this new release violated his copyright in the tattoo.
Although the U.S. District Court for the Eastern District of Missouri did not block the release of the film, in its May 24 decision, it did schedule a June 17 conference for the parties to discuss next steps in the case.
Whitmill claims that the tattoo is his creation, and that its placement on Mike Tyson’s face for the first film in the series, The Hangover, constituted “fixing” the tattoo in a “tangible medium of expression,” thus allowing Whitmill to control the work as his original work of authorship.
Not surprisingly, WB disagreed. It took the position that Whitmill lacked standing. WB raised other arguments, including that tattoos on the face are not copyrightable in the first instance, that there is no fixed tangible medium of epxression (arguing that a human face is a “useful article”). (I suppose a human face can be a useful article, perhaps depending on the identity of the owner? – Ed.) WB also argued that even if the tattoo in this case is properly copyrightable, Whitmill gave Tyson the right to register the copyright in the tattoo, and Tyson in turn grated a broad license to WB to use the image. WB also said that its use was a parody (for use of the tattoo to add humor in the second film, [SPOILER ALERT!] when one of the main characters wakes up with the tattoo on his face).
This case raises difficult questions. Can this expresssion can be protected, and if so, who has standing to enforce those rights? The studio? The original artist, who claims authorship? Was this a work-for-hire? Is this particular use a parody? And if a tattoo can be copyrighted, what about other facial art, like permanent makeup, or even specific makeup applications? This could be a slippery slope, and with the popularity of tattoo art, one ripe for clarification.
Presumably, if the case is not settled, we will get some answers to these questions. Assuming it is not settled, what are your predictions for the outcome?