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Can You Copyright a Tattoo?

Photo: emerille

Former heavyweight champ Mike Tyson is famous for a lot of things, including biting off Evander Holyfield’s ear in a fight. A few years later he got this unusual tattoo on his face, also now famous.
Last week, Victor Whitmill, the tattoo artist who inked Tyson, filed suit against Warner Brothers, claiming they had infringed his copyright in Tyson’s tattoo. Which raises an interesting question: Can you copyright a tattoo? And if so, who owns it: the artist, or the person who has it on his skin? And what happens when it appears in a film?
The story begins with The Hangover: Part II set for release this Memorial Day weekend. In this follow up to the 2009 hit The Hangover, in which Tyson appeared, the characters reunite, travel to Thailand, have a few drinks too many, and another epic night unfolds. Actor Ed Helms wakes up the next morning with a facial tattoo that looks just like Tyson’s.
As the creator of Tyson’s tattoo, Whitmill believes that Warner Bros. has to pay him if it wants to reproduce his art on Ed Helms’ face.  And, perhaps surprisingly, he has a pretty good legal claim.  But there is a twist.
First, are tattoos subject to copyright? They are works of graphic art, so yes. Think of them just like an etching hanging on a wall. By applying the tattoo to Tyson’s face, Whitmill created a copyrightable work. Whitmill wants an injunction to stop the release of The Hangover: Part II because his art appeared in the film without his consent.
If the film had featured an etching by Whitmill, the studio would have had to get the rights to show it in the film “cleared”– that is, approved by the copyright owner. That clearance process is a major headache for a lot of filmmakers, especially documentarians who film real life—and therefore capture things like songs, TV shows, and art works. The same rule applies to the tattoo. So far, so good for Whitmill.
Second, does Warner Bros have a way out? The studio may claim that the tattoo is not original – it is clearly inspired by traditional Maori tattoos. But this is unlikely to work. Copyright’s originality threshold is very low, and even if Whitmill adapted his design from one in the public domain it will nonetheless be copyrightable if it is not copied exactly.
Warner Brothers may also claim that their use of the Whitmill tattoo is protected by the “fair use” doctrine. We haven’t seen the movie, so we can’t say for sure if this defense will succeed. But generally, unless the film uses the tattoo as parody (which it might) or uses it transformatively in some other way, it is unlikely to qualify as a fair use.  So the bottom line is that Whitmill’s claim is not frivolous, and he may well get a big payday from the studio just to make him go away.
Perhaps the most interesting issue is why he didn’t complain about the first Hangover movie, which also featured the tattoo, but on Tyson. If a studio has to get rights from the copyright owner to show a work of art in a film, it shouldn’t matter if the work is etched on a face or a piece of paper.
But here things get tricky.
Etchings on paper stay indoors. But Mike Tyson is going to walk around—and who is going to stop him? Because Whitmall’s tattoo is a work of art attached to a person, any judge is going to have a hard time holding that Tyson can’t do ordinary things because the tattoo artist owns the exclusive right to publicly display Tyson’s tattoo.
And for a celebrity like Tyson, ordinary things include appearing in films. So courts would tend to assume that there is an “implied license” between Tyson and Whitmill that Tyson will appear on camera now and again, and therefore so would the tattoo.
So the real problem here is not that the tattoo appeared in The Hangover: Part II—or, for that matter, in The Hangover—without Whitmall’s permission. It is that it was applied to Ed Helms. It is the copying that matters. So even if Helms’ scenes were left on the cutting room floor, but he kept the tattoo on for a few days while hanging out, Whitmill would still have a case. But Tyson can appear in as many films as he wants, and Whitmill is unlikely to get a dime.
Finally, there’s an overarching question here: given the risk that enforcing an artist’s copyright in a tattoo may interfere with the personal freedom of the person marked with the tattoo, should we have copyright for tattoos at all? To know the answer to this, we’d need to think about whether copyright has any real role in ensuring that tattoo artists have sufficient incentives to continue creating new designs. We may come back to this question in a future post.