Whose Art Is It Anyway?

If you're planning on being one of the millions sure to see The Hangover Part II over the long Memorial Day weekend, great news... it's actually going to open as scheduled. A good portion of the movie-going public probably never knew this but there's been a legal battle raging behind the scenes that was very close to stopping the Warner Bros. tentpole film in its tracks. And it all had to do with a tattoo. The fact that it happens to be a tattoo that's instantly recognizable and which plays an integral part in both the movie and its promotion was precisely the point; it's why such a stink was being made in the first place.

Basically here's what the trouble was about: A tattoo artist named S. Victor Whitmill, who used to work in Vegas but who now lives in rural Missouri, sued Warner for violating his copyright by using the Maori-inspired tribal art he designed for Mike Tyson's face on another character in the movie. (If you've seen the trailers, you know that that would be Ed Helms, whose "Stu" character apparently wakes up with the tattoo attached to his face in the same place Tyson has his.) Whitmill claimed in his suit that the artwork is his intellectual and creative property and that it was meant for exclusive use by Tyson and no one else -- not Warner, not Ed Helms, no one. Considering the fact that the tattoo was not only transferred to another body but was then used as major part of the film's promotion -- because it was always guaranteed to be an iconic image from The Hangover Part II -- Whitmill said that he'd essentially lost control of his property, which was the image he had created.

As it turns out, yesterday a judge in St. Louis agreed with him -- but not enough to rule in favor of him and put a stop to the promotion and release of The Hangover Part II. The reason is capitalism in its purest form. Judge Catherine D. Perry said that while she sympathizes completely with Whitmill and thinks the arguments of Warner -- that transferring the tattoo amounts to parody -- are "silly," she had to weigh the economic impact of halting the film's release. And in the end, that cost would have been massive to a lot of parties that had nothing to do with this court battle.

What's interesting is that Judge Perry couldn't have been clearer or more forceful in her opinion that tattoos are a form of creative property and can be restricted by copyright law in how they're used and disseminated. Here's what she said:

"I don’t think there is any reasonable dispute about that. They are not copyrighting Mr. Tyson’s face, or restricting Mr. Tyson’s use of his own face, as the defendant argues, or saying that someone who has a tattoo can’t remove the tattoo or change it, but the tattoo itself and the design itself can be copyrighted, and I think it’s entirely consistent with the copyright law."

Judge Perry went on to say in her judgment that the Warner argument for fair use under the parody clause was ludicrous because, "This was an exact copy. It’s not a parody."

So did the judge rule fairly in this case, particularly given that she also alluded to the idea that Whitmill is in fact owed some money by Warner and that a settlement should be reached? Yes, she's right on the mark.

I happen to know quite a bit about this kind of copyright law, given that one of PARRON LAW's clients is Ami James of the hit TLC reality show Miami Ink and the upcoming spin-off, NY Ink. Sure, Ami can put just about anything on your body, but a design he personally creates -- one that comes from his imagination -- is his property and his alone. Once it's transferred onto a human canvas, it's for the sole use of that person -- and that person can't then turn around and go make money from that design by selling its likeness to someone else. Like any other form of intellectual property, it's copyrighted. No, a court (hopefully) will never order a person to have a tattoo removed that depicts an image of copyrighted material, but once again, it may restrict a person's ability to profit from that image without the artist's permission. If all of this sounds like potential legal quicksand, believe me, it is. The question inevitably arises whether tattoo artists who reproduce copyrighted material onto a person can be sued for violating intellectual property rights. Once again, Ami's personal designs are his; he owns them. Any reproduction of them for profit is prohibited -- but isn't another artist tattooing the same image on someone other than the person Ami designed it expressly for a violation of his intellectual property laws? Do you feel the quicksand tugging at your feet? To say that this is going to be an expanding and complex area of the law over the next several years is a gross understatement.

Whitmill's attorney says he'll now seek an injunction against further distribution of The Hangover Part II. While it's unlikely he'll get one (again, this is probably just a move to push for a bigger settlement for his client) wouldn't it be kind of funny if "The Wolfpack" -- who've endured being drugged, arrested, shot at and tased -- was stopped cold by one very unhappy tattoo artist? Wouldn't it be ironic if they were KOd not by Mike Tyson, but by his tattoo?