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Tattoos: Can We Copyright That Too?

The tattoo depicted in the movie ‘Hangover 2’ is remarkably similar, if not identical to the one Mike Tyson has in real life. has. But one would hardly expect the tattoo artist to approach the Federal District Court and demand the movie’s screening be stopped on grounds of copyright infringement. But so he did, claiming that the producers did not seek his permission before using the design on the face of the lead actor, Ed Helms.

The parties eventually reached a settlement, but the terms are confidential. Although Judge Perry refused to delay the film’s release, she made some interesting comments on the copyrightability of tattoo designs.  She betrayed her support of the tattoo artist by stating that there was a “strong likelihood of prevailing on the merits for copyright infringement” and that most of the arguments put forward by Warner Bros. were “just silly”, but at the same time ordered the film’s release in ‘public interest’. She explained that the harm to the public from staying the release far outweighed any potential harm to the plaintiff. She did not issue a written ruling but merely made oral observations, referring the matter to an arbitrator for a quick settlement instead. In this context, there are three issues worth examining:

Can Tattoo Designs Be Protected? 

Judge Perry remarked that “the tattoo and the design itself can be copyrighted, and I think it’s entirely consistent with the copyright law.” This is an important observation on the scope of copyright protection and whether it extends to tattoo designs. This is not the first time that a designer has claimed damages for the alleged infringement of a tattoo design. A few years earlier, an NBA player was sued for ‘displaying’ his tattoo in a Nike advertisement. This case was also settled out of court, so there is little judicial guidance on this point.

On the other hand, the noted copyright scholar David Nimmer believes that “the body, even as augmented, simply is not subject to copyright protection.” Nimmer was barred from disposing before the court as an expert witness on the ground (as argued by the designer’s lawyer) that he was merely stating what the legal position ought to be and it therefore did not constitute expert evidence. While the position is arguable, Nimmer’s stance is certainly worthwhile since the medium of expression or fixation is especially important in determining the question of copyrightablity.

Originality of the Design

Another issue that was raised was that the complainant’s design itself was derived from existing Maori artwork, and therefore should not be subject to copyright. However, the mere existence of prior Maori designs should not exclude the designer from claiming protection. This brings to the forefront the idea-expression dichotomy in copyright law – as long as the design is a specific expression of an existing idea (or artwork, in this case) there is a valid claim to intellectual property rights. Of course, one would have to consider whether the two designs are substantially similar and constitutes infringement, but this does not necessarily come into play at the originality threshold.


Parody as a  Defence

Another possible defence for the producers is that the tattoo depicted in the movie is a parody of the original design. Judge Perry herself commented on this aspect but dismissed the argument outright. She argued that “this was an exact copy. It’s not a parody.” Perhaps this contention deserves more credit than Judge Perry offered.

While it is true that the mere depiction of Tyson’s tattoo in a comedy film may not amount to a parody, it is certainly possible to argue that a parody includes humourous commentary on a piece of art or the misguided actions of an iconic celebrity such as Mike Tyson. Is it so improbable for a cinematographic comment on the absurdity of a ‘face tattoo’ to be considered a parody? If the film, by means of dialogue or plot, mocks this fact, this line of argumentation should certainly be available to the defendants.Well, at least until the time we have a judicial pronouncement on how, when and why a tattoo can be protected by copyright.

(Image by Gottfried Lindauer is in the public domain)

This post was first published on SpicyIP.

About Amlan Mohanty

Amlan is a lawyer based in India. He engages in research, writing, speaking and teaching at the intersection of technology, law and policy.