Is Mike Tyson's Face Open Source?

May 21, 2011 10:17 AM

S. Victor Whitmill is suing Warner Brothers Entertainment for copyright infringement for using the design of a tattoo he created for Mike Tyson on a characters face in Hangover II. There is precedent for this action.
posted by Xurando (51 comments total)

You know, if I was the recipient of a tattoo (like Mike Tyson) and someone else claimed copyright infringement on something that was now a permanent fixture on my body, I'd be a bit irritated. I'm pretty sure that when I'm buying a tattoo, I'm not simply paying for the right to display someone else's IP. At the very least, they should be paying me, then, not the other way around.
posted by SpacemanStix at 10:29 AM on May 21, 2011 [12 favorites]

He's not suing for Tyson having the tattoo, he's suing for someone else in the film having a facsimile of the tattoo on his face, without permission.
posted by biffa at 10:33 AM on May 21, 2011

Yes, but the tattoo isn't a reference to S. Victor Whitmill. It's a reference to Mike Tyson.
posted by dunkadunc at 10:34 AM on May 21, 2011 [5 favorites]

If that isn't parody (and therefore protected speech), I don't know what is.
posted by found missing at 10:34 AM on May 21, 2011 [9 favorites]

He's not suing for Tyson having the tattoo, he's suing for someone else in the film having a facsimile of the tattoo on his face, without permission.

I know. What I'm saying is that by raising the argument that it is not Tyson's art to control, it degrades the value of Tyson's tattoo to something that does not really belong to him, but to someone else, although it's a permanent fixture on his body and he's appropriated it as part of his public image. His face becomes, in a sense, an advertisement for someone else's intellectual property. I'm guessing that isn't what he signed up for when he received the tattoo.
posted by SpacemanStix at 10:38 AM on May 21, 2011 [9 favorites]

I agree with found missing, but it is funny to see Disney on the other end of it.
posted by zoinks at 10:39 AM on May 21, 2011

This is going to be a fun and fascinating case to follow. I hope they don't settle!
posted by anotherpanacea at 10:45 AM on May 21, 2011

Tyson's fake moko was controversial when he showed up with it: The tattoo was "definitely Maori, but stylized," Sharples told The Associated Press. "I just wish it was on somebody else.". Turns out an American rapist appropriating Maori culture isn't so popular.
posted by Nelson at 10:54 AM on May 21, 2011 [1 favorite]

Yeah, it seems to me, when you get a tatoo you should own the copyright on it, not the artist. Otherwise the artist could sue over any photo of you, not just other people wearing it.
posted by delmoi at 10:58 AM on May 21, 2011

How is a tattoo not considered work-for-hire? It's a commissioned work.
posted by MythMaker at 10:58 AM on May 21, 2011 [8 favorites]

God, I hate it when people force me to root for huge corporations over them.
posted by The Card Cheat at 11:04 AM on May 21, 2011 [14 favorites]

I'm usually about siding with the artists, especially where Tyson clearly signed the rights to the artwork over to Whitmill, but if the internet's taught me anything, it's Fair Use. Is Whitmill going to sue everyone who has ever Photoshopped that iconic tattoo onto someone else's face and posted it online?

Since Tyson was a part of both of these movies and he was okay with making fun of his own likeness, I say let it go. I doubt this movie is going to make any more money because of this simple joke (is it even funny?). Better yet, his work was derived from heavy inspiration of designs that had been around for centuries. I don't find much credence in copyright when that is the case.

Regardless, I guess it gets his name out there as the guy that did the tattoo again, 8 years later. I think asking for an acknowledgement in the credits would have been enough.
posted by june made him a gemini at 11:04 AM on May 21, 2011 [3 favorites]

TRANSFORMATIVE USE
posted by unknowncommand at 11:11 AM on May 21, 2011

There is precedent for this action.

I'm not sure why this qualifies as 'precedent;' David Beckham's tattoo artist a) is in England, not the United States, and b) didn't sue or win a lawsuit or do anything other than tell the Mirror that he may sue if Beckham profits off of the tattoos.
posted by incessant at 11:12 AM on May 21, 2011

> Better yet, his work was derived from heavy inspiration of designs that had been around for centuries.

Yeah, this. Who do the Maori sue?
posted by The Card Cheat at 11:13 AM on May 21, 2011 [3 favorites]

In other news, Richard Cheney's lawsuit against tattooed as**oles in general is heading to the Supreme Court after losing a lower court ruling.

"F**k you!" the former VP explained to our reporter.
posted by Mblue at 11:23 AM on May 21, 2011 [1 favorite]

<>If that isn't parody (and therefore protected speech), I don't know what is.

You're begging the question. Sure, if Mike Tyson owns the copyright, it would likely be protected as parody. But the whole point of this suit is that this Whitmill chap says it is his copyright being infringed. There is no protection for parody of a third party. You can't claim protecton for using somebody else's material to parody Mike Tyson.

I think this is stupid, but you can't just assume your conclusion.
posted by Justinian at 11:33 AM on May 21, 2011

But couldn't they claim to be parodying the face tattoo in its own right, just as much as Tyson?
posted by Horace Rumpole at 11:41 AM on May 21, 2011

That was my point.
posted by found missing at 11:46 AM on May 21, 2011

Better yet, his work was derived from heavy inspiration of designs that had been around for centuries.

I doubt Disney is going to argue in court that something being inspired by centuries of folk art makes it inapplicable for copyright.
posted by a robot made out of meat at 11:50 AM on May 21, 2011 [23 favorites]

Either those who keep referencing Disney in this thread are failing at reading comprehension, or I am.
posted by Horace Rumpole at 11:53 AM on May 21, 2011

Mike Tyson's face is going into the vault.
posted by Artw at 11:54 AM on May 21, 2011

TRANSFORMATIVE USE

Only applicable if Optimus Prime had the tattoo.
posted by ryoshu at 11:58 AM on May 21, 2011

I doubt Disney is going to argue in court that something being inspired by centuries of folk art makes it inapplicable for copyright.

Correct, Air Pirate


Either those who keep referencing Disney in this thread are failing at reading comprehension, or I am.
posted by Mblue at 12:00 PM on May 21, 2011

Did he also sue The Daily Show for doing the exact same thing at least twice? (See: Any bit where Jason Jones gets excessively drunk.)
posted by Sys Rq at 12:02 PM on May 21, 2011

I'm not saying it's inapplicable for copyright, I'm saying it's a weak thing to think you have some sort of ownership over to begin with. 16 year olds bored out of their minds in their math classes have done more inspired work.
posted by june made him a gemini at 12:11 PM on May 21, 2011 [1 favorite]

But couldn't they claim to be parodying the face tattoo in its own right, just as much as Tyson?

Seems like a tough sell to me. What wouldn't count as a parody then?
posted by Justinian at 12:26 PM on May 21, 2011

I'm confused how Disney got referenced into this thread? It's Warner Brothers getting sued.
posted by sharkfu at 12:56 PM on May 21, 2011

Also, that guy's website has a gallery of airbrushed art that includes an image of the Joker, a WB property. Hypocrisy much? I doubt he licensed it.
posted by delmoi at 1:01 PM on May 21, 2011

Ah, here is the joker image. I think it's on a skateboard.
posted by delmoi at 1:05 PM on May 21, 2011

Screw it, I hope he wins. Hollywood wants a world where intellectual property rights are more sacrosanct than physical property rights. Welcome to that world.

Now lie in the bed that you made.
posted by lumpenprole at 1:31 PM on May 21, 2011 [1 favorite]

If that isn't parody (and therefore protected speech), I don't know what is.

There are lots of fair use arguments here, but parody probably isn't one of them. To be protected as fair use, a parody must be parodying the work taken. You don't get to appropriate whatever IP you like just because you're making fun of something.

Presumably the tattoo in the film is not parodying the tattoo on Tyson, so that particular defense would likely fail. Of course we haven't seen the film and the fair use determination is highly fact specific so I wouldn't begin to put money on how the analysis would come out, but it's by no means as clear as you might think it is. IP is hard. There are lots of wrinkles. There are no slam dunks in the fair use context.
posted by The Bellman at 1:51 PM on May 21, 2011

That sounds like legal advice to me. Thanks!
posted by found missing at 2:02 PM on May 21, 2011

Presumably the tattoo in the film is not parodying the tattoo on Tyson

Did you see The Hangover? I'm guessing not. Because Tyson has a prominent, if small, role in it so I think it's a good assumption that it is a reference to him.
posted by Justinian at 2:06 PM on May 21, 2011

Anyway, since I play a lawyer on the internet, I'm sticking by my point that they are parodying the face tattoo that happens to be attached to Tyson. (And, on preview, Tyson is in Hangover II also, apparently)
posted by found missing at 2:08 PM on May 21, 2011

There was a similar case in 2005 with Rasheed Wallace and Nike, who were sued by the tattoo artist who did the Egyptian style tattoo which takes up a large portion of Wallace's upper arm. I can't find anything at the moment about the outcome of the lawsuit, but the artist was claiming it was his property, and Nike and Wallace shouldn't be allowed to use it in commercials.
posted by Ghidorah at 5:46 PM on May 21, 2011 [1 favorite]

Yeah, this. Who do the Maori sue?

Those land-robbing Pakehas, that's who!
posted by hal_c_on at 6:19 PM on May 21, 2011

I am more than happy for folks arguing for insane IP laws to get the blowback wherever possible.
posted by rodgerd at 7:03 PM on May 21, 2011

Ghidorah: There was a similar case in 2005 with Rasheed Wallace and Nike...

There's a discussion of the Rasheed vs artist dispute with some related links in this everytattoo.com post: Rasheed Wallace (the NBA star) was sued by his tattoo artist
posted by Slack-a-gogo at 8:13 PM on May 21, 2011

> How is a tattoo not considered work-for-hire? It's a commissioned work.

This was my thought as well. Are there any lawyers who can weigh in on why it isn't so?
posted by Georgina at 12:22 AM on May 22, 2011

"How is a tattoo not considered work-for-hire? It's a commissioned work."

This was my thought as well. Are there any lawyers who can weigh in on why it isn't so?

I am an attorney, but I am not your attorney and this is not legal advice. You should consult a competent attorney in your jurisdiction.

There are specific statutory categories for works for hire outlined in 17 USC 101. First, anything made by an employee in the scope of his or her employment is assumed to be a work for hire unless explicitly agreed otherwise, but that doesn't apply here because the tattoo artist was not Tyson's employee (unless he has a full-time personal tattoo artist, which is a bit much even for Tyson). Second, for independent contractors only certain kinds of works can be works for hire:

"a work specially ordered or commissioned for use as a contribution to a collective work, as a part of a motion picture or other audiovisual work, as a translation, as a supplementary work, as a compilation, as an instructional text, as a test, as answer material for a test, or as an atlas, if the parties expressly agree in a written instrument signed by them that the work shall be considered a work made for hire"

As you can see, a stand-alone visual work like a tattoo would not be covered. Further, there would have to be an express written agreement. The courts have held that the agreement needs to be pretty explicit about the "work for hire" part. Those magic words pretty much have to appear in the agreement. See, e.g., Playboy Enterprises, Inc. v. Dumas, 53 F. 3d 549 (2d Cir. 1995).
posted by jedicus at 8:13 AM on May 22, 2011

Do I understand your advice to be not to consult incompetent attorneys?
posted by found missing at 8:28 AM on May 22, 2011

I wonder how Tyson feels about not owning his tattoo. And I wonder, if the first Hangover movie had been a small independent film which had a passionate art house following but didn't end up being the highest-grossing R-rated comedy of all time whether this tattoo in the sequel would even be an issue.
posted by hippybear at 9:41 AM on May 22, 2011

Also, I'm now wondering if maybe the entire payment model for tattoos is backwards, and tattoo artists should be paying people to wear their work. You know, if the person who actually HAS the tattoo can't claim that it's theirs, then what are they paying for? Licensing fees? Surely it's more that the tattoo wearer is a walking billboard for the artist's work and should be fairly compensated as such.
posted by hippybear at 11:40 AM on May 22, 2011

Entertainment company hoisted on its own jerry-built petard. Now they'll see the error of their ways, rignt? Right?
posted by Mental Wimp at 12:30 PM on May 22, 2011

think of the tattoo as an accessory like a handbag or sunglasses. mike tyson owns the tattoo the way he would own a pair of sunglasses, but unless he has an agreement with the artist stating that it was a work for hire. what the tattoo artist owns is the design because it is an original work.

the movie studio essentially had a knockoff of an accessory made and the copyright holder of the design of that accessory is suing.

if other copyright holders like chanel or louis vuitton can go after copyright infringers who make knockoffs of their works, why can't a tattoo artist?
posted by mexican at 10:25 PM on May 22, 2011

jedicus, I appreciate the legal explanation, thank you.

I think I was confused because a lot of work that's typically called work for hire doesn't seem to fall under the definition given by 17 USC 101, like logo design and ghostwriting, and I couldn't see how, if designing a logo was work for hire, designing a tattoo wouldn't be. But if it's not work for hire, the situation makes more sense.

(However: I'm particularly surprised by that ghostwriting an entire work (like a celebrity's autobiography or novel) isn't work for hire, because it's specifically called "work for hire" in the publishing world. Perhaps that's a question I should ask in AskMe sometime.)

Thanks for taking the time to enlighten!
posted by Georgina at 3:59 AM on May 23, 2011

Interesting details from Entertainment Weekly:

Whitmill’s case might be bolstered by a statement from Tyson, who appears in both Hangover films, agreeing that “all artwork, sketches and drawings related to my tattoo and any photographs of my tattoo are property” of Whitmill.

Tyson, it turns out, was initially unaware of the film’s tattoo gag, Helms told EW at last week’s Hollywood premiere: “His reaction to the tattoo is in the movie because they did not prep him or me beforehand. As his arrival on set was imminent, it became clear that no one had told him about the tattoo bit, and I was actually worried he’d be mad at me and the switch would flip, But he was so cool about it. He is misunderstood. He’s like the nicest man. He couldn’t be cooler so it was a little anti-climactic.”

posted by hippybear at 9:57 AM on May 23, 2011

He is misunderstood. He’s like the nicest man. He couldn’t be cooler....

Except for the part where he was convicted of rape and then bit Holyfield's ears off.
posted by anotherpanacea at 7:22 PM on May 23, 2011 [1 favorite]

Update:

No Tattoo Holdup: Judge Rules 'Hangover 2' Can Be Released As Scheduled

"Warner Bros. is breathing a sigh of relief this morning as a St. Louis Judge just ruled against Mike Tyson's tattoo artist's request for injunction, allowing The Hangover 2 to be released as scheduled on Thursday. "We are very gratified by the Court's decision which will allow the highly anticipated film, The Hangover 2 to be released on schedule this week around the world," WB said in a statement."Plaintiff's failed attempt to enjoin H2 in order to try and extract a massive settlement payment from Warner Bros. was highly inappropriate and unwarranted." Warner Bros. took the lawsuit very seriously, dispatching two of its top executives to St. Louis on Monday to testify in the case."
posted by sharkfu at 8:24 AM on May 24, 2011

As someone who has worked in clearances and consulted studio legal departments over stuff like this before, this case drives me absolutely MAD.

For one thing, the clearance service would have included a memo in clearance reports to advise production to consult with legal on the matter of the tattoo and whether tattoos need to be cleared or not (especially in this case wrt a particularly famous tat on the face of a person who is involved with the film). So this is homework Warner Bros. would already have done.

Secondly, if this conversation with legal went anything like all others I have participated in, they'd have had the owner of the artwork sign clearance paperwork/contracts. That would be Tyson, not Whitmill. If Tyson is technically not the owner of the tattoo for some previously agreed-on reason, this is something his manager would know and be able to take care of. So again, this is all homework Warner Bros. would have taken care of by now.

If for some reason they ran into a roadblock in this process, all the production would need to do would be to subtly change the design so that it was a "Tyson-esque" tattoo that viewers would read as looking the same. Film productions do this all the time with real intellectual property that would actually need to be cleared. Can't get clearance? Greek it. Done and done. So, seriously, this is all homework Warner Bros. would have taken care of by now.

The fact that this is suddenly coming out of nowhere leads me to believe this is just a gigantic publicity stunt.
posted by Sara C. at 6:26 AM on May 25, 2011