Monthly Archives: May 2011

More Hungover! Update on the Mike Tyson Facial Tattoo Lawsuit against Hangover 2.

A hearing was scheduled today to consider the motion for preliminary injunction filed by tattoo artist Victor Whitmill against Warner Bros. attempting to block the release of the film Hangover 2.  As detailed in this previous post, Whitmill is asserting copyright over the tattoo he placed on Mike Tyson’s face and claiming Warner Bros. use of that image on an actor in the sequel violates Whitmill’s exclusive right to make derivative works.

In preparation for the hearing, Warner has filed its response to Whitmill’s motion, along with a declaration from copyright royalty Prof. David Nimmer, who quite literally wrote the book on copyright (both are reproduced bel0w).  Warner attacks both Whitmill’s underlying claims and the relative balance of the equities of granting the injunction and stopping distribution of Hangover 2.  Simply put, Warner argues that the court should deny the preliminary injunction because even if Whitmill was ultimately successful at trial, he can be adequately compensated by monetary damages.  On the other hand, if the film is enjoined from being distributed and Whitmill ultimately loses his case, Warner will have lost hundreds of millions of dollars that it might never recover.

Nimmer argues that Whitmill cannot have a valid copyright covering the tattoo on Tyson’s face for a variety of reasons, beginning with the fact that Tyson’s face is not protectible medium of expression.  Prof. Nimmer also raises a number of hypotheticals to illustrate the ludicrous results that may obtain should a court entertain copyright protection in tattoos.  I feel somewhat gratified that one of Prof. Nimmer’s hypotheticals is the same as one I considered in my prior post; namely, Tyson would be barred from making any alterations to the tattoo on his face, such as adding to the design or having some or all of it laser removed.

Warner Bros. Response
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Nimmer Declaration
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Will Foreign Streams Escape Infringement Claims When Delivered to US?

That is the subject of a new paper by Tom Bell that will appear in an upcoming  edition of Southwestern Law School’s Journal of International Law, entitled “Pirates in the Family Room: How Performances from Abroad, to U.S. Consumers, Might Evade Copyright Law.”  The paper can be accessed here.  In it, Prof. Bell argues that the coming age of unauthorized on-demand streams of songs — as opposed to the illegal downloading of songs through P2P networks — poses some significant problems for content owners’ attempt to thwart piracy.  Fundamentally, the recipient of these unauthorized streams (i.e., individual consumers in the U.S.) are probably exempt under § 110(4), the so-called “personal use” exception.   Because no copy has been made on his/her hard drive, content owners won’t have an unauthorized reproduction or distribution claim against the consumer who merely listens to a song being streamed from abroad.  Anti-piracy initiatives will have to be directed to the host countries and the ISPs to shut down access to the websites.

Mike Tyson’s Facial Tattoo Infringed by Hangover 2?

“Tigers love pepper. They hate cinnamon.”

If you’re like me, you love the Warner Bros. movie The Hangover (2009) featuring Mike Tyson, his facial tattoo, and his Bengal tiger.  Also, you can’t wait to see this summer’s Hangover 2, which, according to an official movie poster, appears to feature Mike Tyson’s facial tattoo on character Stu Price’s face (played by actor Ed Helms).

Victor Whitmill, the tattoo artist who created the distinctive original design on the former heavyweight champion of the world, has sued Warner Bros. alleging copyright infringement. (original complaint is below; Whitmill also moved for a preliminary injunction, which is provided below)  As someone with (relatively speaking) an extensive collection of tattoos, I’m becoming more fascinated with this case than the upcoming sequel.

Whitmill tattooed Tyson in a Las Vegas tattoo parlor in February, 2003.  As is typical when getting a tattoo, Tyson signed a Release (produced below).  The second to last item listed in the Release states “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 alleges that he was doing business under the name Paradox at the time).

According to the Copyright Certificate (produced below), Whitmill didn’t file for registration until April, 2011, far after the five-year window in §410(c) of the Copyright Act that provides for prima facie evidence of validity.

Warner Bros. has not answered the complaint, so we’ll have to wait and see what their defense(s) are.  We can bet fair use will be one of them.

A more intriguing defense might be to challenge Whitmill’s ownership of the copyright itself.  As I noted above, I’ve got quite a few tattoos, so I’ve spent a lot of time in tattoo parlors.  I’ve also signed a number of releases.  One might accurately describe these as adhesion contracts, as I’ve never seen someone negotiate the terms of the release.  I’m also not sure Tyson would likely understand the import of what he was signing (as it relates to the “ownership” of the image on his face) and such contracts should be read against the drafter where ambiguous. One could certainly make a case that someone getting a tattoo believes at the time that he/she has paid the tattoo artist, in part, for the exclusive ownership of the resulting tattoo, whether by assignment, transfer or work-made-for-hire (but see below).

As Whitmill is making derivative works arguments under §106A with respect to Warner Bros. use of this image, it is theoretically possible that Whitmill could claim that Tyson himself could not alter the tattoo on his own face without implicating Whitman’s copyright; i.e., Tyson might decide he wants to have some or all of the tattoo removed and/or covered up with a different design.

Its hard to see how a tattoo would fit into the definition of Works Made for Hire, since the tattoo artist isn’t likely to be characterized as an employee and the tattoo doesn’t fit neatly into any one of the enumerated categories of qualifying works.

There is another whole layer of Tyson’s rights of publicity potentially implicated, though Warner Bros. probably secured Tyson’s permission.

This case has “settle” written all over it.  Part of me hopes it doesn’t, as I’d enjoy seeing how these legal issues get resolved by the courts.

The Original Complaint is Here
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Tyson’s Signed Release is Here
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The Copyright Registration is Here
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The Motion for Preliminary Injunction is Here
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Tough Sledding for the Porn Litigator

Porn litigator John Steele is getting a LOT of push back from Judge Baker in the Central District of Illinois.  Unlike Judge Howell in the D.C. District who recently denied Time Warner Cable’s motion to quash a subpoena issued in a similar John Doe copyright infringement case (see post here for details), Judge Baker is having none of Steele’s attempts to get discovery prior to a Rule 26(f) conference.  This puts Steele between the proverbial rock and hard place.  Steele can’t get a 26(f) conference until he has a named adversary.  He can’t get a named adversary until he gets responses to his subpoenas from the ISPs identifying the names associated with the IP addresses he has.  And he can’t get responses to his subpoenas until Judge Baker grants his motion for expedited discovery.

Judge Baker notes that IP addresses are bad proxies for identifying actual infringers, citing a recent MSNBC news story about someone who was caught up in a federal anti-child porn case based on the IP address associated with the downloading of child porn.  It turned out that this person’s neighbor had used an unsecured WiFi network to download the offending porn, which should be good enough reason to lock down your home network.

His Honor’s order is below:
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