Image by shelbysdrummond on Flickr
I guess that it is needless to introduce the character on the image above. He has the image of a scandalous guy and he was featured in more or less such light in the film The Hangover. Did you watch it? I did and found it entertaining.
By the way, do you belong to those eagerly expecting The Hangover Part II? Well, do not be impatient if this blockbuster takes somewhat longer to come in a theater near you.
You will not believe it, if I tell you why this is likely to happen!
Ok, here I go. The thing is that Mr S. Victor Whitmill, a tattoo artist, claims that Warner Bros
Have Infringed His Copyright In A Tattoo
Yes, you are reading this correct! Well, it is not just some tattoo – it is the tattoo Mike Tyson is wearing on his face and the same arguably worn by an actor in The Hangover Part II. While Mr Whitmill gave its permission to Mr Tyson to lawfully wear the tattoo, this has not been the case with Warner Bros.
The New York Times has brought this amusing story and it truly deserves a read.
Ok, let me address the main question here: can copyright subsist in a tattoo?
Section 102 (a) of the US Copyright Act 1976 states that
Copyright protection subsists, in accordance with this title, in original works of authorship fixed in any tangible medium of expression, now known or later developed, from which they can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device.
Works of authorship include the following categories:
(1) literary works;
(2) musical works, including any accompanying words;
(3) dramatic works, including any accompanying music;
(4) pantomimes and choreographic works;
(5) pictorial, graphic, and sculptural works;
(6) motion pictures and other audiovisual works;
(7) sound recordings; and
(8) architectural works.
I would say that once Mr Whitmill establishes that his tattoo meets these criteria it will be protected under US copyright law.
What do you think, is this completely impossible? Let us have a closer look at it!
First of all Mr Whitmill will have to prove that his tattoo is a work. I believe this will cause no problems – a tattoo is not different from a painting, which is definitely a (pictorial or graphic) work.
Fixation is an essential criterion for protection under US copyright law. Section 101 of the US Copyright Act gives us the definition of what fixation is:
A work is “fixed” in a tangible medium of expression when its embodiment in a copy or phonorecord, by or under the authority of the author, is sufficiently permanent or stable to permit it to be perceived, reproduced, or otherwise communicated for a period of more than transitory duration.
Having read the definition, would you express any doubts as to whether Mr Whitmill’s tattoo is sufficiently fixed in Mike Tyson’s face? In my view, one could hardly speak of a tangible medium that is more stable than that gentleman’s visage.
Originality is the third main criterion for the copyrightability of a work. It is not defined in the Copyright Act, but can be derived from the plenty of judicial authority.
If the tattoo is a Maori-inspired design, as the NYT newspaper article tells us, can Mr Whitmill have authored it then? Following the leading case of Feist v Rural, Mr Whitmill’s tattoo shall be considered original once he establishes that
the work was independently created by the author (as opposed to copied from other works), and that it possesses at least some minimal degree of creativity
Hmm, could Mr Whitmill succeed on this point? In my view originality will be the very issue, provided, however, that the matter will be eventually fought before a Court of competent jurisdiction.
Despite my legal interest in the copyrightability of a tattoo, I would ask the same question as did the Harvard Info Law Blog:
Would this be a lawsuit, let alone a front-page NYT article, if the accused infringer wasn’t a big movie studio with a tentpole summer movie on the brink of release?
What do you think?