Can you copyright a tattoo? The tattoo artist who gave boxer Mike Tyson his distinctive facial tattoo, S. Victor Whitmill, thinks so. The movie studio Warner Bros., not so much. In April 2011, the tattoo artist sued Warner Bros. for copyright infringement. Specifically, the complaint alleges that “Warner Bros. Entertainment, Inc.—without attempting to contact Whitmill, obtain his permission, or credit his creation—has copied Whitmill’s Original Tattoo and placed it on the face of another actor.”42 (In the film The Hangover Part II, Stu wakes up with a copy of Mike Tyson’s tattoo after a night of revelry in Bangkok.) In his lawsuit, the tattoo artist attached his copyright registration for the Mike Tyson Tattoo as well as Tyson’s signed release granting him the legal rights in the work. 

Moreover, Whitmill not only demanded substantial compensation for the infringement of his tattoo design; he also asked a judge to issue an injunction to stop the
release of the highly anticipated comedy sequel. The movie was scheduled to be released over the Memorial Day weekend, one of the biggest box office weekends for the movie industry. 

If you were the head of the movie studio, what would you do? Take your chances in court or settle out of court with the tattoo artist? On the one hand, Warner Bros. could roll the litigation dice and argue to the judge that the copyright isn’t valid; or that the studio changed the design just enough to escape infringement; or that the use of the tattoo in the film constitutes a “transformative” use or that it’s a parody.

But on the other hand, the tattoo artist could argue that tattoos are original and creative works that are deserving of copyright protection, regardless whether they are painted on canvases or on the faces of former heavyweight champions. Furthermore, the tattoo on the Stu character in The Hangover Part II appears to be a direct comedic reference to Mike Tyson, who appeared extensively in the first film, so this fact might make it difficult for the movie studio to argue that the designs are merely coincidentally similar. In June 2011, Warner Bros. decided to settle the lawsuit with Whitmill, the tattoo artist, though the terms of the out-of-court settlement were not disclosed. In January 2013, the University of Illinois Law Review published a 40-page legal article addressing this case and discussing in detail the implications of applying copyright law to tattoos.⁴³

CRITICAL THINKING QUESTIONS

Does a tattoo qualify for copyright protection? In the absence of an agreement specifying who the owner is, who should own the legal rights to a tattoo: the tattoo artist or the person who paid for the tattoo? Draft a one-page document that could be used as a starting point for settlement negotiations between Warner Bros. and Whitmill.