Tattoo Suit Won't Stall 'Hangover 2' Opening, Says Judge

Who really owns the tattoo on Mike Tyson's Face?

May 23, 2011, 6:01 PM

May 24, 2011— -- A federal judge today ruled that " The Hangover: Part II" can open in theatres on Thursday, but said a copyright lawsuit over Mike Tyson's face tattoo duplicated in the movie would be allowed to go forward.

A trial opened yesterday in St. Louis, Mo., threatened to stall the film's opening, but experts say the ongoing case could still shed new light on the murky corners of copyright law.

"We are very gratified by the Court's decision which will allow the highly anticipated film, The Hangover: Part II to be released on schedule this week around the world,? Warner Brothers, the production company behind the film said in a statement.

It sounds like a joke straight out of the upcoming comedy -- Who owns the tattoo on Mike Tyson's face?

In reality, it's not a joke but a serious and complicated matter of law, now being disputed in federal court. The artist who inked Tyson's famous face tattoo is suing the film's producers for copying the image without paying for it, a suit that could potentially delay the movie's opening and shed light on a new corner of copyright law, tattoos.

In the sequel to the 2009 blockbuster, actor Ed Helms wakes up in Bangkok after a night of heavy drinking with a face tattoo that very closely resembles that of boxer Mike Tyson, who also appears in the film.

S. Victor Whitmill, the artist who designed and tattooed Tyson's face in 2003, filed a lawsuit in April at the federal court in St. Louis, arguing that Warner Brothers, the company producing the film, had violated his copyright.

"Mr. Whitmill has never been asked for permission for, and has never consented to, the use, reproduction or creation of a derivative work based on his original tattoo," his lawyers argue in documents filed April 28.

The reproduction of Helms' face amounts to "reckless copyright infringement" according to the suit.

While it might seem counterintuitive that someone other than the person whose face is tattooed owns the rights to that tattoo, by law the right to reproduce the tattoo is Whitmill's, his lawyer said.

Tyson doesn't have to cover his face up or pay Whitmill every time a paparazzo snaps his photo, but if someone wanted to reproduce the tattoo they would have to pay the artist, with certain important exceptions, lawyers told ABC

It's those exceptions that underpin Warner Brothers' defense, said copyright attorney Lara Pearce.

Moreover, what first sounds like a frivolous lawsuit related to a face tattoo reproduced for a comedy, opens the door to many questions about whether someone can own a piece of someone else's body, what kind of art can and can't be copyrighted, and when does parody infringe on someone's right to make their living.

"This case is not about Mike Tyson, Mike Tyson's likeness, or Mike Tyson's right to use or control his identity," reads the suit. "This case is about Warner Bros. appropriation of Mr. Whitmill's art and Warner Bros. unauthorized use of that art, separate and apart from Mr. Tyson."

Whitmill has a real case, said Pearce who also operates the law blog, but Warner Brothers has an equally solid defense.

In a motion, Warner Brothers said it reproduced the tattoo under the "fair use" provision of the law and it is used to parody Tyson, who appears in the film.

A copyright has to satisfy four criteria, all of which are intended to protect an artist from losing market share to someone who steals their idea, Pearce said.

"The first: Is the copier doing so for commercial reasons or for non-profit or educational purposes?" he said. "In this case it is commercial -- the movie wants to make money -- but the producers aren't selling tattoos that will compete with the artist."

The court then has to determine whether the copied material replaces the market for the original, what percentage of the whole is reproduced and what effect it will have on the market for the original.

Much of copyright law is a legal gray area. Some creative types argue that the law favors some media over others. Fashion designers can't copyright the shapes or style of a dress because it's deemed "functional" but they can copyright an image on a t-shirt.

There have been just a handful of copyright lawsuits pertaining specifically to celebrities and their tattoos.

Basketball player Rasheed Wallace and Nike were sued by the athlete's tattoo artist, when the ink was outlined in a television commercial while he talked about it. The suit was settled.

That same year, soccer star David Beckham and his artist Louis Molloy got into a tiff over whether Beckham's tats would feature prominently in an ad campaign

"I own Beck's tattoo .. and I'll sue," Molloy said at the time.

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