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Copyright suit over Mike Tyson's facial tattoo

Interesting copyright issue reported in the New York Times:

In “The Hangover Part II,” the sequel to the very successful what-happened-last-night comedy, the character played by Ed Helms wakes up with a permanent tattoo bracketing his left eye. The Maori-inspired design is instantly recognizable as the one sported by the boxer Mike Tyson, which is part of the joke. (Mr. Tyson makes an appearance in both films, playing himself.)

But S. Victor Whitmill, a tattoo artist formerly of Las Vegas and currently from rural Missouri, doesn’t quite see the humor. Mr. Whitmill designed the tattoo for Mr. Tyson, called it “tribal tattoo,” and claims it as a copyrighted work. (source)

The tattoo artist claims that he owns the copyright in the tattoo and has asked a federal judge to issue an injunction preventing the film from being released. I presume that he took that route because he created the tattoo in 2003, but did not bother to register his rights in it until April 19, 2011. (registration). Since he failed to register his copyright before the alleged infringement (and not within three months of the release of the original on Mike Tyson’s face), he can’t take advantage of the Copyright Act’s most generous gifts to artists — the ability to collect statutory damages of between $750 and $150,000 and the ability to get prevailing party attorneys’ fees. Therefore, his strongest card to play is the hope that a federal judge will issue an injunction holding up the movie from its release next week, costing the studio gazillions of dollars. Certainly, if it comes to that, Warner Brothers will be ready to pay out a hefty settlement to keep the reels spinning.

One of the most interesting wrinkles in this case is how Mr. Whitmill registered the copyright. He registered it as “Artwork on 3-D object.” I guess the “3-D object” is Mike Tyson’s head. Of course, since the artwork is inseparable from Tyson’s head, I can’t see how this case can move forward. Even if it could, I have a hard time imagining that this attempted mugging will go anywhere if the court takes even a parting glance at Fair Use. The use is clearly parodying the original, and could not possibly have an effect on the market for the original. Therefore under Cambpell v. Acuff-Rose, 510 U.S. 569 (1994) and 17 U.S.C. s 107, this case should ultimately fail.

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