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Mike Tyson’s Tattoo Center of Copyright Litigation

The tattoo artist that designed the famous tattoo (similar to those found on the faces of the Maori people of New Zealand) on the left side of Mike Tyson's face is suing Warner Bros. Entertainment Inc. for copyright infringement for their use of a nearly identical tattoo in their upcoming movie The Hangover Part II.[1] According to the complaint, in 2003 S. Victor Whitmill created and applied the tattoo in question to Tyson's face.[2] At that time, Tyson signed a release form "acknowledging 'that all artwork, sketches and drawings related to [his] tattoo and any photographs of [his] tattoo are property of'" Whitmill.[3] Additionally on April 19, 2011, Whitmill registered the tattoo with the Copyright Office.[4] On a side note, the registration humorously classifies the copyright's subject matter as "Artwork on 3-D object."

In 2009, Warner Bros released the movie The Hangover which featured Mike Tyson in several scenes. While the sequel, The Hangover Part II, does not include Mike Tyson, the character played by Ed Helms does awaken to discover on his face a nearly identical tattoo to the one found on Tyson's face. Whitmill alleges that the duplicate tattoo on Helms' face "is a recurring device and plays an important role in the plot of the Movie."[5] Additionally, Whitmill claims that the "Pirated Tattoo is prominently featured in the marketing and promotional materials for the Movie."[6]

Whitmill asserts that he never consented to, nor was he ever asked for, permission to use the design in the movie or in the marketing materials.[7] He seeks relief in the form of a preliminary injunction during pendency of the suit, a permanent injunction thereafter, an award of monetary damages, an award of Warner Bros. profits and unjust enrichment realized from the use of the tattoo, and attorney's fees.[8] For Warner Bros., the most disturbing aspect of the suit is the preliminary injunction seeking to prevent the release of the movie, slated to hit theaters later this month on May 26th, 2011. With millions in production and marketing costs, Warner Bros. has a lot to lose if a judge were to grant that injunction. Fortunately for Warner Bros., today U.S. District Court Judge Catherine D. Perry refused to grant a preliminary injunction while at the same time acknowledging that Whitmill has a good chance of prevailing on the merits.

However, Warner Bros. does have some potential counter arguments. They can claim that the use of the tattoo in the movie and promotional materials is permissible under the fair use provision of the Copyright Act. According to 17 U.S.C. § 107:

Notwithstanding the provisions of sections 106 and 106A, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified
by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright.
In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include -

(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
(2) the nature of the copyrighted work;
(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
(4) the effect of the use upon the potential market for or value of the copyrighted work.

The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors.

What do you predict the outcome will be? Leave your opinions in the comments section.

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