By Christina Paquette -
The Hangover: Part II was released last week to much fanfare, raking in $137.4 million, and earning the title for the biggest five-day opening of an R-rated movie ever. But the opening was almost barred by a lawsuit brought by S. Victor Whitmill, a tattoo artist who claims the movie infringed on his copyrighted tattoo design. While his name may not be familiar to the general population, Whitmill’s work has certainly been seen by many, including anyone who saw the first Hangover movie, since Whitmill is the creator of the tribal tattoo etched onto the face of Mike Tyson. In The Hangover: Part II, Ed Helms’ character appears with a similar design on his face, prompting the lawsuit.
Several elements must be present for a work to be copyrighted. The work must first be an expression of an idea fixed in a tangible medium, such as a literary work, a visual art work, a sound recording, or other work enumerated in 17 USCS § 102(a). The work must also be original, meaning that the author himself must not have copied it from another author. Copyrights, unlike patents, do not have to be registered. However, an author is still able to register a copyright to gain a presumption of validity. Whitmill registered the copyright of Tyson’s tattoo, done in 2003, in April of this year.
If Whitmill indeed has a copyright in the tattoo, he has the exclusive rights, as the owner of the copyright, to reproduce and display the work. Thus, Whitmill claims Warner Bros. violated these rights by recreating his tattoo design on Ed Helms and displaying it in the film.
Though Whitmill sought an injunction prohibiting the release of the movie until the lawsuit is resolved, United States District Judge Catherine Perry denied this injunction last Tuesday, two days before the movie’s release. Stopping the release would be disruptive, and harm business people not involved in the lawsuit, she reasoned.
The originality of Whitmill’s design has been doubted, since many see the design as a copy of the traditional Maori tribal tattoos found in New Zealand. Warner Bros. has argued that very ability of tattoos to be copyrighted is a novel idea, with no precedent to support it. However, Judge Perry made it entirely clear that tattoos deserve protection, stating, “of course tattoos can be copyrighted, I don’t think there is any reasonable dispute about that.”
Warner Bros. has also pointed out that Whitmill never objected to the showing of the real tattoo on Mike Tyson when the heavyweight champion made an appearance in the first Hangover movie, or at his cameo in The Hangover: Part II. Whitmill replies to this by explaining that he does not have a problem with Tyson displaying the tattoo since it is part of Tyson’s identity. To be clear, Whitmill does not assert that he has a copyright in Tyson’s identity, only a copyright in the tattoo design, which is documented on Tyson just as another piece of artwork might be set out on canvas.
Even if the tattoo is copyrighted, Warner Bros. claimed that their use of the tattoo design was covered under the fair use doctrine, a concept that exempts users from infringement claims when the use is done for the purpose of parody, education, or other limited reasons. Judge Perry was not sympathetic to this defense, however, and declared instead that Whitmill had a “strong likelihood of prevailing on the merits for copyright infringement.” Judge Perry also indicated that she would be willing to hold an expedited trial on the issue of liability and, at a later date, would consider a request for a permanent injunction on the distribution of the movie.