A couple of days ago I was taken by friends to see Hangover II (please don’t hate me). On the off-chance that you have thoughtful friends like mine, I should warn you that there are certain… infelicities in the film, most of which might make you laugh despite your best, or even modestly fair, judgment (don’t hate yourself), but one of which is legal in nature and might be no laughing matter. It goes like this (the New York Times has the full version):
Mike Tyson went to S. Victor Whitmill to obtain a tattoo and left with a Maori inspired creation on the left side of his face, as you see in the image to the left. The makers of the movie Hangover II thought it would be fun to have Mr. Tyson appear at a point in the film and — more fun — to offer a “homage” to, and perhaps a parody of, Tyson’s experience by having a character while blotto get tattooed with the same design. Mr. Whitmill took umbrage at the homage and filed a lawsuit in California, seeking an injunction against Warner Brothers and damages on the ground that he held the copyright in the design of that particular tattoo and WB had infringed it. In support of his suit, Mr. Whitmill, who was doing business at the time as Paradox-Studio of Dermagraphics, produced an agreement signed by Tyson saying:
that all artwork, sketches and drawings related to [his] tattoo and any photographs of [his] tattoo are property of Paradox-Studio of Dermagraphics.
This contretemps has sparked a lot of comment, as you might imagine. Big celeb, high-grossing movie (Hangover I scooped half a billion dollars from us!), novel legal question… Can you have a copyright in a tattoo?
Leaving aside the document Tyson signed, one issue under US law would be whether human skin may qualify as “any tangible medium of expression,” as required by Title 17 of the Code. As we see from Warner Brothers’ response, the objections are unlikely to be technical (after all, skin is tangible and, as makeup artists have known for millennia, perhaps the quintessential medium of expression) so much as based in anxiety about a connection between ownership and a human being. From the other side, though, it’s common for celebrities to market their likeness, licensing others the exclusive right to it and so forth. Hard, though, to imagine that a court would rule in such a way that Mike Tyson could only be photographed in right profile without Mr. Whitmill’s permission.
There are some mild ironies here as regards ownership and appropriation. Although tattooing has been practiced seemingly forever in human societies, the word itself was taken into English from the Samoan or Tahitian in a document written by one of Captain Cook’s crew in about 1769. And, as mentioned above, the style of Tyson’s tattoo is Maori, a much simplified version of markings significant to those people.