The Volokh Conspiracy’s David Post examines a new lawsuit filed by tattoo artist Victor Whitmill against Warner Bros. studios, alleging that the company violated his copyright by featuring a facial tattoo in the new movie The Hangover 2 that looks identical to the tattoo Whitmill designed for boxer Mike Tyson. Does he have a case? Here’s Post:
To answer that, we need to figure out if tattoos can be protected by copyright at all — a question no court (until now), to my knowledge, has ever confronted. The Copyright Act sets out the requirements for copyright protection: you have to have an “original work of authorship,” and it must be “fixed in a tangible medium of expression.” There’s not much question that Whitmill’s design is an “original work of authorship” — if it were painted on canvas, for instance, there’s no doubt that it would receive copyright protection. The harder question is whether Mike Tyson’s face is a “tangible medium of expression.”
The statute says that a work is “fixed in a tangible medium of expression” when its embodiment in a material object is “sufficiently permanent or stable to permit it to be perceived, reproduced, or otherwise communicated for a period of more than transitory duration.” By my reckoning, the tattoo here clearly fits the bill: once it’s on Tyson’s face, it can be perceived by others for more than a “transitory duration.”
Read the rest of Post’s analysis right here. For a skeptical take on copyright laws, see Jesse Walker’s classic feature "Copy Catfight: How intellectual property laws stifle popular culture." For a quick overview of the movement to legalize tattooing in modern America, see here.