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Mike Tyson’s Face as Art?

It might be unusual to feature “Hangover II” and Mike Tyson on these pages, but it seems impossible to omit the copyright controversy that blew up around the film and the figure.
In 2003, S. Victor Whitmill designed and tattooed Mike Tyson’s face. The creators of “Hangover II” thought it would be funny if one of their characters woke up in Bangkok with Tyson’s tattoo on his face. In April of this year, Whitmill filed a lawsuit against Warner Brothers at the federal court in St. Louis, alleging that the tattoo in the movie was “virtually exact reproduction” of the tattoo he created on Tyson, and that this reproduction violated his copyright. Accordingly, Whitmill sought an injunction against the release of the film.
The lawsuit has set the academic world buzzing. Warner Brothers tried to call on David Nimmer, a copyright scholar, to testify on the issue of copyrightability of tattoos. According to Wired, Nimmer’s position has changed over the years. U.S. District Judge Catherine Perry of Missouri blocked Nimmer from testifying on the basis that his testimony would be a legal opinion rather than expert testimony.
As IP Kitten points out, a similar controversy regarding copyrightability of “faces” arose in England in 1983, in the case of Merchandising Corporation of America v Harpbond. The case concerned the stylized make-up worn by Adam Ant; the make-up design was not found to be copyrightable, due to a lack of fixation. However, fixation is not a problem in the case of tattoos.
Judge Perry herself thinks that tattoos can undoubtedly be copyrighted. “They are not copyrighting Mr. Tyson’s face, or restricting Mr. Tyson’s use of his own face, as the defendant argues, or saying that someone who has a tattoo can’t remove the tattoo or change it, but the tattoo itself and the design itself can be copyrighted, and I think it’s entirely consistent with the copyright law.”
Despite Judge Perry’s dicta, and although it seemed likely that Whitmill would prevail on the merits, the injunction was not granted. “Hangover II” was released as scheduled on May 26. The decision was made on the basis of “public interest”; The harm that would be caused to Warner Brothers and other businesses around the country would outweigh the harm caused to Whitmill. Indeed, “Hangover II” was the second highest-grossing film this weekend.
The matter of copyright infringement, however, is yet to be determined. Whitmill’s lawyers expressed intention to pursue further action in court.
Read the article at the New York Times.