This month, the legal blogosphere has been all atwitter about aMissouri tattoo artist’s lawsuit against the studio behind The Hangover 2, and the artist’s attempt to stop not only the release of the film, but even block the studio’s ads and promotional materials. In case you aren’t up-to-date on your face art-related news (there’s just so much out there!), let’s catch you up: St. Louis tattoo artist S. Victor Whitmill has sued Warner Bros. claiming that a tattoo featured on the face of one of The Hangover’s main characters, Stu Price, played by Ed Helms, infringed Whitmill’s copyright in a very similar tattoo he placed on boxing-champ Mike Tyson’s face back in 2003. A cursory comparison of the two tattoos shows how strikingly similar they are, and when coupled with Whitmill’s allegations, perhaps how worried WB should be. (Hat tip to TMZ for the side-by-side comparison.)

Whitmill alleges that in 2003 he created “one of the most distinctive tattoos in the nation” — one that looks nothing like a facial version of the tramp stamp gracing the lower back of half of the current denizens of Hollywood nightclubs — by placing an original “tribal tattoo” (the registered name of the copyrighted work) on the upper left side of Tyson’s face. At the time he applied the tattoo, Whitmill apparently had Tyson sign a release (attached as an exhibit toWhitmill’s complaint). Although the release primarily contains typical tattoo/piercing CYA language (the signing client represents they’re over 18, not under the influence of drugs or alcohol, etc.) it also contains a provision stating “I understand that all artwork, sketches and drawings related to my tattoo and any photographs of my tattoo are property of Paradox-Studio of Dermagraphics” (Whitmill’s d/b/a, which pretty ingeniously linguistically science-ifies tattoo artistry).

While Whitmill’s release language seemingly purports to grant him ownership of any image of Tyson in which the tattoo is displayed (the actual photographers might have something to say about that, I think), Whitmill kept silent as Tyson and his tattoo made their big cameo in 2009’s summer juggernaut, The Hangover. It wasn’t until a look-a-like tattoo appeared on Ed Helms’ (extremely pained-looking) face in ads for The Hangover 2 that Whitmill decided to bring an infringement claim. And already, bemused legal eagles are wondering if it’s “the best copyright complaint ever.”

The Wacky Legal World of the Tattoo

It’s odd to think of tattoos as being the subject of legal protection (tattoos other than this one, anyhow), but of all legal points to make here, that one seems to be the easiest: they are. Section 102(a)(5) of the Copyright Act extends copyright protection to “pictorial, graphic, and sculptural works,” while Section 101 defines that term to include, among other things, “applied art.” Moreover, last year, the Ninth Circuit broke legal ground by holding that tattoo artistry is a form of expressive activity protected by the First Amendment, and that the city of Hermosa Beach’s blanket prohibition on tattoo parlors was therefore unconstitutional. (Tattoo enthusiasts cheered. Your grouchy Aunt Mildred, who just doesn’t understand kids these days, probably groaned.)

And for those whose hearts are still in law school, there are all kinds of interesting theoretical issues that arise out of the intersection of copyright and tattoos. Even without the rights grant provision in favor of Whitmill, the author of a copyrighted work has the exclusive right to do and to authorize others to reproduce the copyrighted work in copies, to prepare derivative works based upon the copyrighted work, and to distribute copies of the copyrighted work to the public, among others. If a tattoo artist claims he authored and therefore owns the copyright in a tattoo he applied to a client’s body, does that mean the tattoo artist can prevent the client from altering the tattoo in the future so as to make it a derivative work of the original? What about copies of the tattoo appearing in photographs of the tattooed individual that are distributed to the public? Can a tattoo artist, as a copyright owner, prevent the person on whose body the tattoo was applied from distributing otherwise legal images of him or herself if the tattoo is visible in those images?

The complexity of these issues explain why Whitmill did not bring a claim over the appearance of Tyson’s face tattoo in the first Hangover, or the countless other times pictures of Tyson’s face have been distributed to the public via TV, film and print media over the past seven years, despite the release language easily lending itself to support such claims. And Whitmill’s current lawyers are smart enough to avoid falling down this academic rabbit hole as well, effectively disclaiming any law school hypothetical issues about the respective rights of an artist and his human canvas, and instead announcing, “This case is about Warner Bros.’ appropriation of Mr. Whitmill’s art and Warner Bros.’ unauthorized use of that art.” (And, more to the point, how much money they are willing to pay Whitmill to use the art — but that’s my edit.)

Warner Bros.’ Strategy for Copyright Warfare

There are studio employees whose sole professional function is to identify movie elements which may create studio exposure under copyright, trademark, right of publicity, or other areas of law, and to either obtain releases from all necessary parties or work with filmmakers to edit those elements out of the studios’ films altogether. So once the executives at Warner Bros. have finished tracking down, screaming at, and possibly firing whoever dropped the ball on clearing the use of a highly visible artistic element that represents a central plot point in one of its summer tent-pole films, it seems to me they have several options to try and get out of this mess.

One would be to attack Whitmill’s allegation of copyright ownership. Because the release purports to grant Whitmill ownership of all artwork related to the tattoo and all photographs taken of it, Warner Bros. could argue that the release is invalid either as an illegal or unconscionable contract. Arguably, all artwork related to the tattoo would include the permanent image tattooed onto Tyson’s skin. It may be a stretch, but because it is illegal to sell human organs, Warner Bros. could argue that the contract is a de facto agreement to grant Whitmill a property right in Tyson’s skin, and so is illegal and invalid. Similarly, WB could argue that a grant of rights regarding all future images of a person’s face, particularly contained in a form release surrounded by unrelated provisions, is unconscionable and thus void. Because the ownership provision was buried at the bottom of an otherwise standard and non-negotiable “release,” it could also be attacked as a contract of adhesion, further strengthening the unconscionability argument. Moreover, as suggested above, the ownership language is, on its face, seemingly overbroad, as Tyson himself simply couldn’t unilaterally and prospectively grant an ownership interest in photographs taken by third parties, with or without permission from Tyson himself, at some unspecified future time.

Once the problematic provision of the release is invalidated, WB has a better argument that Tyson, not Whitmill is in fact the copyright owner. WB can argue that the tattoo was created a work for hire, and thus copyright originally vested with Tyson, or they can explore whether Tyson contributed to the design and thus might be considered a joint author with Whitmill. Of course, these arguments turn on Tyson’s willingness to grant Warner Bros. the right to use the images of the tattoo that appear on Helms’ face. But it seems unlikely Tyson would refuse this to the studio that has made him culturally relevant again — especially since it’s been reported that Tyson himself makes a cameo in The Hangover 2, as well.

A slightly less convoluted argument Warner Bros. could make — one advocated by severalother bloggers — would be for WB to characterize its use as parodying the original Tyson tattoo and thus a “fair use” of the image under the Copyright Act. The success of such an argument will likely turn on Warner Bros.’ use of the tattoo in the film and whether the story surrounding it lends itself to a parody defense. One of the factors analyzed in determining fair use, however, is the amount and substantiality of the portion of the copyrighted work used in relation to the copyrighted work as a whole. Without having seen the film, I imagine Warner Bros. may have a difficult time explaining why it was necessary to use a nearly identical copy of the entirety of the Tyson/Whitmill tattoo when other comedians — including, most recently, Jon Stewart of The Daily Show in making fun of the celebrations surrounding the capture of Osama bin Laden — have made clear reference to the tattoo without copying more than its placement and general “tribal” style.

For his part, Whitmill is likely to focus on the distinction between parody — using a creative work to comment on that creative work — and satire — using a creative work to comment about something else in society. While the law in this area is (as is typical for copyright/fair use) often fuzzy and always evolving, copyright law draws some distinction between parody and satire, and seems to offer more protection to the former than the latter. Whitmill would argue that WB isn’t parodying his tattoo by incorporating it into The Hangover 2, but rather, using it to poke fun at Mike Tyson. Warners, on the other hand, would argue that, even if Whitmill nominally retained ownership of Tyson’s tattoo, he understood and implicitly licensed Mike Tyson to go out into the world and be the new tattooed Tyson, and that as a result, the tattoo is now synonymous with Tyson and inextricably linked to Tyson’s identity, which means there is now no functional difference between parodying Tyson and parodying his tattoo. It’s the kind of distinction that only a lawyer (or perhaps a lawyer’s mother) could love. But those kinds of very fine distinctions are often where cases like this are won and lost.

Under normal circumstances, a studio in Warners’ position might well consider eating the cost of digitally editing the film to alter the appearance of Ed Helms’ face tattoo and reduce its similarity to the Tyson/Whitmill design. But given the timing of the lawsuit and, more importantly, the fact that the tattoo’s specific design is probably also an important plot element for the film, it seems likely that WB is going to be cutting two checks in the very near future: one to its lawyers to scare the bejeezus out of Whitmill and his lawyers with their possible defense, and another to Whitmill just to make him go away.

Of course, the good news for Warners is that, if The Hangover 2 performs anywhere near expectations, the executives at WB will be drying their tears with crisp new $100 bills soon enough. But here’s betting that’s cold comfort for one (possibly former) Warner Bros. clearance specialist.