You probably heard that the guy who did Mike Tyson’s face tattoo is suing Warner Bros to stop them from releasing The Hangover Part II, wherein Ed Helms gets an exact replica face tattoo. Most people are approaching it as a joke story, but tattoo aficionado and lawyer Marisa Kakoulas has examined the case with a smart, informed legal eye. And her thoughts are intriguing and worth reading for anyone interested in the future of intellectual property rights and copyright. Some of what she has to say:
1. Whitman’s tattoo design for Tyson can indeed be protected under copyright. Despite what you read in comment forums on this case, copyright does apply to tattoos. Protection exists from the time the work is created in fixed form, in sketch and/or on skin. No registration required. But to file an infringement suit, Whitman did have to register his copyright. [The registration was certified April 19, 2011.] If Whitman had registered his work before the infringement or within three months from the date of the tattoo, he may have gotten statutory damages (determined by law not just loss) if successful in his suit. But an award to recover actual damages and profits may still be available, as well as the injunction to stop the film. What those actual damages and loss of profits are is not stated in the complaint. Click here for more on damage rewards.
2. Based upon what I’ve read in the complaint, the tattoo is not a work for hire. Another huge misconception being floated about. In work for hire, the person commissioning a work is considered its author with regards to copyright. That person does not simply have a license in the work but owns the work, not the original creator. Work for hire can apply in employer/employee relationships and to independent contractors if certain requirements are met. Not all works fall under “work for hire,” but even if tattoos could be considered part of those that do, the parties must “expressly agree in a written instrument signed by them that the work shall be considered a work made for hire.” No work for hire agreement exists in this case. Click here for more on work for hire.
I highly recommend reading the whole thing. It seems like the artist has a case, although he hamstrung himself by not registering the design earlier (he just registered it in April of this year, despite creating it in 2003). The reality is that Warner Bros will almost certainly settle quickly, to avoid the issuing of any injunctions against the release.
The idea of who owns a tattoo is intriguing, and will likely become something that celebrities deal with more in the future. Kakoulas talks about some interesting cases in that regard which have already begun laying the groundwork for future decisions.
Thanks to Jenni Miller for drawing my attention to this.