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Comment by Happy Birthday Roboto on June 14, 2011 at 6:12pm

@QbanKnight + guffaw

I want to thnk both you gents for explaining this as well as you have in such detail.

 

That said, this whole legal debacle could be the basis for a new comedy, this really is a mad mad mad world!

Comment by Ashkan Abousaeedi on June 14, 2011 at 12:54pm

this is just stupid. the guy just wants a quick buck.

Comment by lexloco on June 14, 2011 at 12:43pm

also, I just learned about googling for specific file types. Turns out if you google for .docs and .pdfs you can find almost anything. I googled: tyson tattoo injunction warner brothers filetype:doc and the first hit was a doc of notes someone took down of the Judge who handed down the injunction decision. It goes on for a while but here's a clip:

"Whitmill created an original piece of art. Mike Tyson signed off on a legal agreement that Whitmill retains the rights to the image on his face.

Tyson and Warner Brothers did not get permission to use the artwork in their film. Judge says the artwork was displayed in almost every scene of the movie after the opening, but was not significant to the plot line. It was of minor significance.

But the movie did give a negative stereotype of tattoo artists.

A copyright infringement suit is likely, and Whitmill is likely to win that case

There is no evidence that WB had license to use the tattoo, because use was unauthorized.

As far as fair use/parody. She says there was no change to the tattoo, it was an exact replica. Any tattoo would have been okay, but they instead chose to violate the copyright.

She does believe that monetary damages will be in Whitfill's favor, but she also thinks he would have done better by settling and not trying to get an injunction. Because now that she has ruled, it will be more difficult to get damages.

But the loses to WB will be greater than the loses to Whitmill in the long run, so the "Balance of Equities" favors WB.

And the Public Interest argument absolutely favors WB. Third parties to this movie stand to lose millions in an injunction. Theater owners not party to the case, distributors, vendors, etc. stand to lose substantially.

Thus, preliminary injunction is denied. She is referring the case to mediation.

Comment by lexloco on June 14, 2011 at 12:40pm

it was definitely better than some of the other research I have in front of me!

@Roboto - my view on it tracks pretty closely with the Freakonomics blog post I linked to (http://www.freakonomics.com/2011/05/02/can-you-copyright-a-tattoo/). If they were to enforce it, courts would be extremely reluctant to impose restrictions on the person with the tattoo. The implied license that the article talks about makes a lot of sense to me. That gets around a lot of problems and sort of limits the issue to someone else reproducing the tattoo artist's work. Of course, you'd still have damages issues when the tattoo is being reproduced

And I agree there are some terrible problems with applying copyright law to tattoos -- I just think that those complications make the case interesting.

Comment by Ha-Ra on June 13, 2011 at 9:49pm

@Fungusmonkey: we are two law students using what we know about the law for something fun; it's how we change our pace sometimes :D

Comment by Ha-Ra on June 13, 2011 at 9:49pm

@Roboto: while it's difficult to say whether specific tattoos can ever be used again in films, a ruling in favor of the artist would establish precedent that would make studios very cautious to pull a similar stunt. But it wouldn't make sense for Tyson to cover up his face in another movie or TV show for several reasons:

 

1) Tyson appeared on Hangover 1 with the tattoo and no fuss was made; for the second film, the artist is complaining about the tattoo appearing on a different character

2) To demand so much of Tyson would be utterly ridiculous to enforce. Tyson himself would point out that making public appearances with the tattoo does no harm to the original artist, physically or economically.

3) Furthermore, directors would possibly need to pay an additional fee for using the image of any tattoo artist's design besides the actual application of it. 

4) Finally, for years people have made public appearances with a variety of tattoos and it would be insane to demand each of them to ask permission from their artist if they can make the appearance. That's like asking a fashion designer if it would be alright to make a public appearance in their custom dress. 

 

These are just a few examples that Warner Bros. can use to point out the insanity of this case, and the extremely detrimental effect it could have on studios, actors, or even regular people. 

 

As for whether or not copyright can apply to tattoos, the answer is yes. A tattoo is an image, and is not a fact or idea, hence a tattoo can be copyrighted just like photos and paintings can be. But the application of such copyright might depend on the circumstance. A tattoo copyright would make sense for one artist to enforce against another, thus preventing the other artist from taking customers away from the original artist. But merely seeing the tattoo in a different medium is another story altogether. 

 

And no Roboto, you can't be sued for having someone tattoo Batman on your arm because logos are not protected by copyrights, but by trademarks, which have a different and more limited set of laws than copyright law. Now, the Batman logo is affixed to the actual character of the same name, and is the logo of several films, to identify the persons and the films. So putting the image on your person is hardly grounds for suit, since you can't possibly claim to be Batman (except in your dreams) and you can't possibly be a film. While you are making a copy of the logo, you are not suggesting DC is endorsing or sponsoring you for this tattoo. 

 

So go ahead, Roboto, get the Batman tattoo you always wanted ;)

Comment by Da Kahuna on June 13, 2011 at 9:21pm

Have they tried a firm application of open palm to the artists face yet?  I don't believe that this has been tried yet.

Comment by Miracleman on June 13, 2011 at 8:31pm

Don't tell me your problems.

Comment by Happy Birthday Roboto on June 13, 2011 at 6:17pm

@guffaw and QbanKnight

You guys make some very logical and compelling arguements, as is my understanding the outcome will be based on whether or not the courts rule that this is a parody or not and if not then to what extent Warner Bros. has made money off it and what impact the film has had on the public perception of the work, got it!

 

But here's my question to you both, if, for arguement's sake, the courts did rule in favour of the plaintif, and decided that this was indeed his copyrighted material that was used without permision and that Warner bros. did indeed make a certain amount (however little) of money thanks to the tattoo, and the courts rule that the tattoo should not have been used does that stop future film makers from using other tattoos on film?

Let me put it this way, if the courts rule that the tattoo is the artist's property, does that mean that Tyson can star in a movie or TV show showing his bare face, or will  he need make-up to cover his tattoo because he has someone else's copyrighted material on his face?

 

Does copyright law apply to tattoos? So if it does can I be sued by DC for having the Batman logo tattooed on my arm?

Comment by The Dork Knight on June 13, 2011 at 4:43pm

well now for The Hangover Part III, Stu will DEFINITELY have to have it removed.

Its been a couple weeks so I sort of forget what exactly his character said, but it was something like "don't worry I'm going to get it removed as soon as we get back" and then the wife said "I actually kind of like it...but can we switch sides". I THINK thats something like what they said...so atleast they already got themselves covered incase people ask "hey what happened to the tattoo???".

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