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Here's an interesting dilemma: You're a tattoo artist living in rural Missouri and you've managed to tattoo Mike Tyson's face. Your work is seen by millions of people (free of charge, or free advertising, depending on your perspective). However, Warner Brothers, with its fabulously successful though horrible new movie The Hangover II, thinks it would be a good gag to have one of the characters (Stu Price, played by Ed Helms) in the movie wake up with Mike Tyson's tattoo on his face. Mike Tyson's tattoo? Or is it your copyrighted design that someone else is suddenly using to make a buck?
Victor Whitmill apparently wasn't amused by this. He was the tattoo artist who designed and inked Mike Tyson's tattoo. Warner Brothers didn't give him a penny when they used his Mike Tyson tattoo design in the Hangover II. Mr. Whitmill has filed a lawsuit against Warner Brothers (S. Victor Whitmill vs. Warner Bros. Entertainment
) alleging copyright infringement. Incidentally, as of June 9th, 2011, the movie has already grossed nearly $350 million
dollars in international release, and the tattoo appears on many of the advertising posters and is planned to appear on the cover of the DVD for home release.
US District Judge Catherine D. Perry decided against blocking the release of the movie, but allowed Mr. Whitmill's case against Warner Brothers to proceed.
The case gets even more complex and interesting when Warner Brothers hires a copyright law expert, David Nimmer, to defend its use of the tattoo in their film. Problem is, Mr. Nimmer, reportedly an authority on copyrights, had previously postulated that artwork such as tattoos on the skin could
be copyrighted. However, once employed by Warner Brothers, he seems to have had a sarcastic change of heart:
The tattoo qualifies as an original “work of visual art” that may
gain ”recognized stature,” with the result that a court may enjoin its
destruction. See 17 U.S.C. § 106A(a)(3)(B). After a court invokes that
provision to bar him from removing his tattoo, Mr. Tyson literally may
not show his own face to the world; that is, he will be required to keep
Mr. Whitmill’s handiwork spread across his face, regardless of his
own desires. Copyright law thereby becomes the instrument to impose,
almost literally, a badge of involuntary servitude, akin to the mark
with which ranchers brand the cattle they own.
Am I reading this correctly? If tattoo artists were allowed to copyright their works, then the people who were tattooed by them would become enslaved to their whims on exactly how, where, and when they could show their faces in public? Clearly we can't make slaves of our citizens! Nimmer predicts doom upon the tattooed masses if such copyrights could be enforced upon human flesh!
Before we resolve the Hangover II Tattoo, let's look at another interesting case involving another professional athlete with a tattoo: the case of Matthew Reed vs. Nike and Rasheed Wallace (Matthew Reed vs. Nike, Rasheed Wallace, and Weiden + Kennedy
In 1998, Rasheed Wallace had joined the Portland Trail Blazers and had a very promising career in basketball. Matthew Reed was working as a licensed, self-employed tattoo artist in the Portland area. Mr. Reed was gaining a reputation as a tattoo artist and had tattooed other celebrities. Rasheed Wallace went to see Matthew Reed about getting a tattoo. Mr. Wallace had some ideas about what he wanted: an Egyptian theme with a sun, a pyramid, a King and Queen (to represent himself and his wife), and his children. Mr. Reed obliged Mr. Wallace with designs until an agreement was met and the tattoo was inked. Wallace paid Reed $450 for the tattoo.
Wallace's career in basketball continued to climb. During the 2003-2004 season, after one game with the Atlanta Hawks, he was traded to the Detroit Pistons and won an NBA Championship. Along with growing media attention of Wallace's game, Nike paid him to do a commercial featuring his tattoo:
However, neither Wallace, Nike, nor Weiden + Kennedy (the advertising agency hired by Nike to create the ad) apparently considered that anyone else might claim a copyright to the tattoo. Mr. Reed, after seeing the commercial, filed for the copyright on the work, then sued both Wallace, Nike, and the advertising company, claiming ownership of the image.
Christopher Harkins presents an excellent review of some of the legal issues to consider with regards to tattoos and copyrights (Tattoos and Copyright Infringement: Celebrities, Marketers, and Businesses Beware of the Ink
). The document is somewhat complex for the lay reader, but a couple of the key problems with regards to determining who owns the copyright to the tattoo include:
Did the customer receiving the tattoo explicitly order the tattoo as a
work-for-hire piece? Was their expectation full ownership of the design
they commissioned after being inked?
What is the status of the tattoo artist's claim to copyright ownership with
respect to their employment? Does the tattoo shop owner have an expectation of
copyright ownership when an employed artist has created a work partly under their
direction? After all, the tattoo shop owner/employer often assigns the
work to the artist and provides the tools required to complete it, and
perhaps even some creative direction.
What about an independent
contractor? Is there an explicit agreement between the hiring party
and the independent contractor that the work is being performed as
"Work-for-Hire?" It is the opinion of Mr Harkins that the assignment of
copyright from employee to employer in the case of tattooing is likely
to fail certain legal tests, however these issues further muddy the copyright ownership waters.
2. Joint Works are Co-Owned by the Author
A stickier situation with regards to the creation of tattoo designs and copyright ownership is resolving whether the artist entirely created the work or if the customer or some other party was involved in its creation. In the case of Rasheed Wallace, Mr. Wallace clearly had many ideas with regards to the composition of his tattoo. This is likely to be the case with many custom tattoos. In this respect, Mr. Harkins argues that even a small but integral contribution towards the design of the tattoo might result in a case for a co-ownership of the copyright. Thus either party could freely exercise the use of the copyrighted work, but the other party could claim half the revenue from the commercialization of that work.
What happened with the legal cases above?
In the case of Whitmill vs Warner Brothers Entertainment, as of the writing of this article, no financial settlement has been reached. Warner Brothers has reported that they will digitally alter the tattoo in the DVD home release version of the movie if no settlement can be reached by December 2011, the scheduled DVD release date. In the meantime, the courts have allowed the movie to go forward in the theaters.
In the case of Reed vs Wallace and Nike, the case was settled for an undisclosed sum out of court. There has been considerable speculation regarding what might have happened if the case had gone to trial and been decided in Reed's favor; virtually anyone with a tattoo captured on film for commercial purposes (say a sporting event or celebrities in a movie) could result in royalties to the tattoo artist.
What does all this mean for your tattoo shop? Well, first of all these cases demonstrate that there is a strong argument for ownership of tattoo art copyrights, but that issues of joint ownership and transfer of copyrights when it comes to tattoos is still not entirely clear. The best strategy is to put in writing an agreement with regards to the ownership of copyright at the time of the design creation. Nothing would have prevented Rasheed Wallace from filing his own copyright since he also made design decisions for his tattoo. The issues of joint ownership or exclusive copyright versus simply contracting the tattooer as a "work-for-hire" should be spelled out (the latter obviously benefiting the customer).
I am not a lawyer and this article should not be construed as legal advice. If you are about to tattoo the next Lady Gaga, then you might want to talk to a lawyer about your rights first!