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Should Mike Tyson's face tattoo be protected by copyright?

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Should the tattoo design curving around the left eye socket of Mike Tyson be subject to copyright protection? That's the multimillion-dollar question a judge will be considering in a suit against Warner Bros. for the skin ink that adorns Ed Helms' face in "The Hangover: Part II" -- but not before the movie hits theaters on May 26.

S. Victor Whitmill, the tattoo artist who created Tyson’s tattoo in February 2003, filed suit in the U.S. District Court for the Eastern District of Missouri on April 28, claiming that the similar-looking tribal tattoo sported by Helms' character in the sequel to "The Hangover" (which also includes a return appearance by Tyson himself) amounted to copyright infringement, and sought not only damages but also an injunction against the film's release. 

Although U.S. District Judge Catherine Perry declined on Tuesday to halt the scheduled release of the movie -- then just two days away -- the case is far from over, complicated by the fact that, according to some reports, Whitmill claims he explicitly retained a copyright interest in the design he permanently affixed to the boxer's face.

While we're more than happy to let the legal experts hash out the minutae of U.S. copyright law as it applies to tattoo designs prominently inked onto celebrity skin, we also wanted to know where our readers stand on the subject:

Should all tattoo art be protected?  Should the degree of protection hinge on whether or not the bearer of the tattoo is a public or private figure (the way it does in libel law)?  Should no tattoo art be protected?  Or do you think in this particular instance the use is protected as a parody?  And, if it is found to be a copyright infringement, what is it worth?

Post your opinions in the comments section below. Depending on the responses, we may give the topic some more ink.

Just not ink shaped like ... well, you know.

-- Adam Tschorn

Is 'Schmucks' tonsorial trademark infringement?

Photos: More celebrity tattoos

Photo: Mike Tyson, a cast member in "The Hangover: Part II," at the May 19, 2011, premiere in Los Angeles in front of a movie poster depicting actor Ed Helms with a similar style tattoo. The man responsible for Tyson's tattoo has sued Warner Bros. for copyright infringement. Credit: Chris Pizzello / Associated Press

 
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If he actually copyrighted it fine. But he should get paid for what a normal person would be paid for use of his tattoo copyright a $200

Is anything really original in 2011 ? I've seen it all before - Heard it all before. The movie is even a copy of itself, fer Christ's sake !

If a tattoo artist were able to copyright a design wouldn't it mean that every time another tattoo artist were to draw on a person they would have to clear it with the Copy Right Dept?

I think it's absurd that a person can copy right something that he would draw on a person. If I inked McDonalds on my ass could McDonalds sue me?

that's stupid. the maori should sue tyson for using their symbols on his face.

parody idiots!

It is clearly a copy of the original design, it would be parody if they had flipped it and placed it over the other eye, or added a comical genital shape into the design but they did not. Lazy WB designers.

Reproduction of a design without permission violates the intellectual property rights of the artist in question.

Tyson signed away his rights to the design before it was tattooed fully understanding the image rights were to be retained by Mr. Whitmill, as a tattoo artist I can say this is common practice in the world of custom tattooing.
Tysons tattoo is a copy of the original design in another medium, from paper to skin.

The question is reproduction of a copyrighted image. Just because it's a tattoo doesn't make it any less protected by the copyright code.

As far as I'm concerned, once that ink goes on *my* skin, that art becomes mine.

People walking around with a "© 2011 tattooist's name" on their face? very funny!

It belongs to the person who received the tatoo, who commissioned the artist to apply it. Each tatoo then becomes unique as it is a combination of the art and the subject. Copying the art for non-commercial purposes is permitted. In this case it was a deliverate attempt to satirize tyson, and it is permitted, especially if they paid Tyson. The artist gave up his claim when he got paid.

Since most tatoos are infringments any way (TAZ anyone?) No, it is out in public and do not bear the (C) so should be open to use.

Mike Tyson paid for the Tattoo so he should own the rights to it, instead out the Artist. The same way if I bought a Rembrandt, I would own any rights to it and its reproductions.

NO! It's a freaking tattoo anyone can have done on them. It looks more like someone needs more money to support their stupidity. Toss this case out like the trash it is.

It's a tattoo. What are you going to do, sue everyone that has one similar to it? What a Moron this man is.

How many Disney Characters you tattooed on people without getting Disney's consent?

Looks like a someone is looking for SUM EAZY MONEY!

Tattoos are nothing more than a form of graffiti. Should every wall, overpass and subway train defaced by taggers be protected by copyright, too?

If the artist filed the necessary papers to have his work copyrighted, of course the law should apply. What? Does that LA Times want us to ignore our Copyright laws like it want us to ignore our immigration laws?

yes it should, although i can give 2 craps about it, but no one has the right to make $$$ from someone else's idea or creation.

This issue comes up and most production do not know where to stand on this. It would be great if a ruling existed as such:

As the art is not on a canvas, rather on a human, the copyright should be allowed to be used in photograph as the human is allowed, unless the artist had the human sign an agreement whereas the artist retained all publicity of the work.

If the agreement is made before the art is 'installed' then the human would have the knowledge and therefore be able to relay that knowledge to whomever. The human should be responsible for this information, and should be a party of this suit. That art becomes part of the person, but the artists should have the opportunity to protect his/her rights as well. It would give the person the ability to accept or deny the 'installation'. Especially on the face.

Let me see i understand.
Every time a person walks out or work and has a picture taken you will have to the tattoo artists? Lets say an artist, or a musician
so Lady Gaga has to pay kat von d for putting her inked ribs out in her cd cover?

I hope the people posting here intended to post their *opinion* and not what they think the law is. Unless you're producing work for an employer (customers are not employers) the copyright for any art you create belongs to you unless you and the customer specifically agree *in writing* that it is a work made for hire AND the art falls into one of nine categories. The copyright for any artwork that doesn't meet both requirements belongs to the creator, regardless of the medium. In the case of a tattoo, what you've bought is some ink, the tattooist's labor, and the right to display only the copy they inked into your skin. That part isn't minutia, it's well established law.

Notwithstanding that part of the law, just because you own a copyright to a specific image doesn't always mean others infringe your copyright by producing similar, or even nearly identical work. Extremely similar photographs of the same landscape would be one example where your copyright is limited to your specific photo. If the tattoo is a derivative work of prior tribal art there may be no infringement when others produce very similar work. It will depend on how unique the tattooist's derivation is, and how similar the movie's tattoo is.

JUST ASKING...

- Should we assume that the alleged "artist" actually invented the shape in the said tattoo, and if not, then should we look for the actual iconography which he might have ripped off in order to ascertain whether or not he suffered injury or, instead, is inflicting it?
- Should we open the door to allowing people to retroactively sue others for tattooing something on their bodies, thus driving anyone who ever drew a silhouette of a rose, or a dragon, to file a copyright claim?
- Should we force anyone filing a copyright claim for a graphic design to demonstrate that they have not simply copied the design from an ancient Mayan temple, or a sutra in Sanskrit? Should we sue them if they did?
- What if the tattoo is made of letters? Can anyone copyright font-based tattoos?
- Does S. Victor Whitmill's design on Mike Tyson's face bear a proper copyright mention and a legal warning, or was it merely used as Hollywood bait?
- Can a font company using the SAME design elements sue S. Victor Whitmill? Can anyone else? (Contact me or any graphic expert for name of font)
- Can S. Victor Whitmill sue small, unsuccessful film distributors too?
- Can we copyright a curve? If so, Warner Brothers should be exonerated, since their design in the film The Hangover is slightly different from Tyson's by a couple of curves?
- Can Mike Tyson copyright wife battery, or talking with that funny voice, to discourage others from attempting it?

(c) These questions are copyrighted and may not be used to defend the case.

Should the tattoo artists pay royalties to the Maori, Fijian & other Polynesian tribal tattoos they are trying to imitate? The Tyson artwork seems to resemble some of the traditional Maori artwork I am seeing on a visit to New Zealand.

Yes and maybe. If it's copyrighted as used by Mike Tyson, then they may have a good case because it not only is identifiable by person, but also by the same movie. Tyson was in the first film. As a work of art, maybe, and most likely probably because it does have an inherent originality, although one could argue it has historical tribal references. A case in point, Picasso had several works of abstract art which were derived from African primitive art. However, his work is viewed as his own. It'll be an interesting case with some ramifications people are underestimating. In all likelihood, they'll probably settle out of court to avoid all this.

Just turned in a copyright application on the word "Mom" and on the phrase "Born to raise hell". Be forewarned.

o yeah, sure do.
......THIS IS NOT THE MIKE TYSON WE KNOW.

that was a 'Killer'!!

Considering that tattoo is such a important part of the movie (it's on the freakin poster!)....someone needs to get paid. That movie is going to make $130-160 million. Just pay the artist 100K and be done with it.

Should it be copyrighted? No. People have the right to look stupid if they want to lol

Under Federal Copyright law, anytime someone "creates" be it photography, writing, music, graphic design, painting, illustration, etc., etc. that person automatically "owns" it.

So, yes, the tattoo artist does own the design (assuming he/she did not "steal" the design from someone else).

As for awarding damages-that would be determined on the persons intent at the time of copyright violation. A decision for the courts.


--John C.


It would be my opinion, that, if Tyson paid the artist for the tattoo and they had no other arrangement-it would be a simple "fee for service" and the artist has no rights to the design. If anyone could, trademark (not copyright) the look and the design it would be Tyson. Ed Lewis

Why should that bozo get paid for that design considering every bit of tribal that has been done in the past 20 years is based on designs that tattooer Leo Zuluetta first started doing back in the 80s. So if anything, Whitless should be paying him.

Their tattoo business are copyright of thousand years old. Did the Eldest most original tattoo business gave them permission? NO! Chinese invented the ink, did they not copyright use of the ink? Yes!! so why bother copyright the design tatto or no tattoo..this is idiocracy trying to make money for loyalty bullshit!!!! Tell me anything that is not a copyright from the idea of the original items....

Talking of tattoos...Is Manny Pacquiao not in violation of his use of the popular video game called PACMAN? Hope not...

Definition of PARODY
1 : a literary or musical work in which the style of an author or work is closely imitated for comic effect or in ridicule

2 : a feeble or ridiculous imitation
--
I think there is no question that the intent of having the tattoo put on the
character was intended for comic effect. The question is whether or not
the act of having the extremely similar piece of "art" installed on a different
person is enough to be considered a parody.

The humor generated is from having a tough guy's tattoo put on someone
who is NOT tough, making it a "ridiculous" imitation.
---
I have to wonder if this "artist" ever did a tattoo of a cartoon character owned
by Warner Brothers. If so, present him with the bill and let him get a "credit"
against what he owes. Here's your $30 million, where is our $Billion?
---
There are rules regarding trademarks where you must defend them in order
to keep them. I'm not sure if the same applies to copyrights. Since he has
allowed pictures to be taken of Tyson to be published without requiring a
credit, has he in fact effectively placed the "work" in the public domain?
Certainly there were posters of Tyson in the first movie that were made w/o
him trying to get credit.
---
There is also a question of whether or not the tattoo is a new piece of art or not. If it's just a copy/derivative of what was already being use by a tribe,
then he can make no claim.

This baloney is why copyright needs a major overhaul and simplification and needs everything being public domain within mere years and not life.

If it's a work of art, and it looks like a work of art to me, it should be protected by copyright. WB lawyers should know better.

No. The tattoo is not an original work despite the artist's claim. They all shoukd be fined for wasting our time and money.

This design is Maori, elders in NZ are pretty upset its being used in this commercial way. Whitmill copied it more than "created" it.

IF THE MARK HAS VALUE ENOUGH FOR THEM TO USE IT IN THE MOVIE & THEIR ADVERTISING THEN IT'S VALUABLE ENOUGH FOR THEM TO PAY FOR IT, ESPECIALLY IF IT'S SOMEONES ARTWORK.
SO SICK OF THESE BIG STUDIOS EXPLOITING ART AND NOT PAYING ANYTHING FOR IT.
JUST PAY HIM ALREADY!

Tyson's tatooed face belongs on the bottom of every toilet.

In music, whilst lyrics and lead (guitar, keyboards etc) instruments/compositions can be copyrighted, Rhythm (bass and drum) compositions cannot.

Maybe tattooing should be the same, but tribal designs are definitely in the 'rhythm' category.

I believe this would fall under the category of satire, which should protect it from claims of copyright infringement.

The tattoo was a parody with Tyson who also appears on the movie. The tattoo artist should be proud to show his work on the screen. Facial tattoo isn't new as the Maoris has been doing it for ages and the artist probably modified some of their designs. Star Trek Generation has a character with tattoo.

Are we, the people, actually paying a court to hear this psychotic matter? The man who brought this suit should fully reimburse the taxpayers.

No Thug(s) Tatto(s) should be protected by anything other than the "Party Gun(s)" that the thug(s) carry every time they leave their sty(s)!

I'm a tattoo artist of 14 years and I think the suit is ridiculous. Every artist has at some point in her/his career inked something that was copyright protected and gotten paid. Does this open us up to suits?

Most of the work I do now is completely custom and some has even been on the cover of non-tattoo mags- I'd never think of suing. The art is no longer mine once it leaves the studio.

Sure it would be great to control what someone did with art (please, don't wear that shirt with my art- it clashes!) But it isn't my business when the ink heals.

This is a joke....many people have Dolphins, hummingbirds...when do they get their money? Someone copied them. Give us a break and just be happy it was placed in a movie. I'm sure that's advertisement too.

It was stolen from the New Zealand natives.

Funny movie for sure. Could care less about the tat & Tyson

How many other movies has mike tysons face tattoo been in? They are only making such a big deal out of it because they know it's going to be making good money.

I wonder if this tattoo artist would be willing to share the settlement funds with traditional Maori moko (tattoo) artists who he initially "ripped off" for Tyson's tattoo. I would guess cultural appropriation for his own profit is fine but if he sees someone else making money off "his" design--lawsuit. Hypocrite.



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