S. Victor Whitmill, the tattoo artist who created and tattooed Mike Tyson’s facial tribal tattoo, filed a lawsuit against Warner Bros. for copyright infringement on April 28, 2011. Whitmill claims that the facial tattoo appearing on Ed Helms’s character Stu Price in The Hangover Part II infringes on Whitmill’s rights to the tattoo that he created for Tyson. See the side by side image on the TMZ website.
In his complaint, Whitmill sought not only damages but an injunction to stop the release of the film and a permanent injunction against the film. On Tuesday, May 24, U.S. District Judge Catherine D. Perry reluctantly refused to stop the release of the film. She stated that she should have enjoined the film however, the harm to the public interest outweighed the harm to Whitmill. Judge Perry added that Warner Bros. and thousands of other nonparties would lose significant amounts of money if she enjoined the release of the film.
Luckily for Whitmill the case is not over. Judge Perry also added that Whitmill has “lost control over the image he created” and that Whitmill will be entitled to some compensation. Mr. Whitmill and his lawyers are still fighting for damages as well as a permanent injunction against the film.
Whitmill does have a registered copyright for Tyson’s tattoo. One of the major questions in the case is whether Warner Bros.’s use of the tattoo is considered “fair use.” Fair use is a defense to a copyright infringement claim. It acknowledges the defendant’s use of the copyrighted work and states that the use was for a specific purpose, such as an educational use or parody. In determining if the use of the work is within the scope of fair use the factors which are considered are, (1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes; (2) the nature of the copyrighted work; (3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and (4) the effect of the use upon the potential market for or value of the copyrighted work.
Here, Warner Bros. contends that their use of the tattoo in the film is a parody. The court will take into account each of the factors mentioned above. Factors two and three should weigh heavily in favor of Whitmill since Warner Bros. used the tattoo in the exact same manner as the original tattoo and because the tattoo on Helms’s face is almost identical to the tattoo that Whitmill designed for Tyson. However, it may be hard for Whitmill to show that Warner Bros.’s use of the copyrighted tattoo in the film had any effect on the potential market of the work or that Warner Bros.’s use of the tattoo will result in unfair profits. Further, the court must determine Warner Bros. purpose for using this tattoo in the film and if the use in the film comments on Whitmill’s work.
This is a case without much precedent and it should be interesting to see the court’s view on the alleged infringement and if any part of the originally released film will change. The attorneys at Marcus Stephen Harris, LLC frequently counsel clients on copyright issues that can arise in many contexts. Contact copyright attorneys at Marcus Stephen Harris, LLC for more information about copyright and exactly what intellectual property can be protected.