One of the hotly anticipated titles this summer is, not shockingly, a sequel. Yet with all the positive advance word Director Todd Phillips may be reconsidering that whole gag involving a tattoo. In the follow-up release the character played by Ed Helms – victim of a self-inflicted molar extraction in the original – awakens with his face sporting the tribal ink of previous cameo star Mike Tyson.
It is a primary gag in the film, as it is featured prominently in the trailers, and Helms is portrayed already be-inked in the character posters that have been released. It even appears on the Big Gulp cups used for the 7-11 Stores tie-in promo. However this has brought some challenges to the production, almost from the time of principal photography.
The story, taking the over-indulging revelers to the orient, was reported early on to have a pivotal role of the tattoo artist being filled out by Mel Gibson. This was a choice piece of synchronicity as it cut very close in parallel to the casting of the troubled boxer Tyson in the original, and the expectation was that the socially conflicted Gibson would boost interest via his stunt-casting. However cast members were said to be vehemently opposed to his inclusion, and soon Gibson was a distaff actor. His slot was then slated to be filled by Liam Neeson, but then he too took leave from the production as reshoots conflicted with his work on the Clash of the Titans Sequel. (Nick Cassevetes is now in the role.)
Now however an even more unexpected headache bringing bigger problems has arrived, and it all surrounds those tattoo scenes. This is all because of a man named Victor Whittmill, and while you may not know him by name, you certainly know his work. He is the creator of the facial artwork that Mike Tyson has etched into his dermal layer, and he has actually brought suit against Warner Brothers for copyright infringement. Whitmill’s legal contention is that they have violated his artistic property by using his artwork without licensing. He is literally suing the studio for damages and is seeking to block the release of the movie into theaters. While initially most scoff at the thought, and rightfully declare this is a crank who is angling for a major settlement, it turns out there is a significant amount of legal backing for the man’s claims.
Thanks to an exhaustive look into the legal foundation from a tattoo blog – written by Marisa Kakoulas at needlesandsins.com – many of my initial questions of this case are addressed, and you may be surprised; this is not a frivolous suit. I had two impressions about this: one, isn’t the “tribal” design pattern somewhat made generic these days from the overuse by frat-boy posers all these years; and two, isn’t this essentially a proprietary issue considering this is Mike Tyson’s design, and he legally agreed to appear in the film?
In order to get to that point there is a legal foundation. First, Marisa lays out how this is even reviewable from a legal standpoint.
- Whitman’s tattoo design for Tyson can indeed be protected under copyright. Despite what you read in comment forums on this case, copyright does apply to tattoos. Protection exists from the time the work is created in fixed form, in sketch and/or on skin. No registration required.
So this establishes the protection of the work itself, I get it. However, as I mentioned above it seems as if there are some grey areas on this matter. For instance, is there not some form of public domain when it comes to random, or popular, designs, such as my mention of the generic “tribal” pattern. This too, according to Marisa, has a legal footing.
- In a nut shell, a work can be original without being unique. Copyright protects the specific expression of concepts and ideas, even common ones. Whitman custom designed this tattoo and did not just take it from a flash sheet, and so yes, even squiggly lines can have protection.
Next, what about two other inarguable facts? Doesn’t the appearance of the artwork on Mike Tyson’s face give him proprietary use in some form, and thus, why was there no lawsuit following the in initial movie? Turns out there are logical explanations here as well. This veers into the realm of commissioned work and use of the term “work for hire”, with determinations to be made whether the work is an original or not. To oversimplify, if Tyson walked into Whittmill’s parlor with the design in hand and asked to have it applied there would be no case, but since he chose a work made by Whittmill the legal rights remain with the tattoo artist. Further cementing this is the fact that Tyson signed a release stipulating that rights to the artwork remained with Whittmill. As far as lack of legal action with the first “Hangover” release, Whittmill’s complaint states he has no grievance with Tyson, nor his appearance. As quoted in the writ:
- This case is about Warner Bros. appropriation of Mr. Whitmill’s art and Warner Bros. unauthorized use of that art, separate and apart from Mr. Tyson.
However this is not a slam-dunk case, either. Some of Warner Brothers exposure becomes mitigated because Whittmill did not file a copyright for the work until this year (it was not certified until April 19, 2011). That means his filing occurred after production on the film began, and thus he cannot claim statutory damages. However if he wins the suit he may be able to collect other damages and/or be entitled to profits. (The injunction against release may also be allowed to stand.) One avenue of defense for the studio may rest with the use of the image as parody, under the Fair Use Doctrine. However the question behind all of it is the timeliness of the courts in deciding the case.
All this legal wrangling and arcane terminology, centered around an R-rated comedy, for the express purpose of grabbing at a stack of cash is enough to drive me to drink. And if I don’t get to see a movie because of the actions of a cadre of lawyers I might slip myself a roofie just to forget it all.