fair use of tattoos? or copyright infringement?

“Fair Use” Parody Or Copyrighted Ink in The Hangover Part II?

Dec 29, 2023

Sometimes a tattoo artist gets a job that is truly a dream come true. In the case of S. Victor Whitmill, it was a request from famous boxer, Mike Tyson, for a tattoo along the side of his face: a tattoo that millions would see whenever he stepped into the ring. By 2003, Tyson was already a famous personality all his own — featured in movies, TV, ads, and of course, a heavyweight champion in the ring. The tribal tattoo that Whitmill recommended, representing his “warrior status” went on to become one of the most distinct tattoos in the world.

So, especially after Mike Tyson’s cameo in the 2009 buddy comedy The Hangover, it made sense to the producers of The Hangover Part II to include a bit mimicking Tyson’s tattoo on the face of a typically mild-mannered character. Unfortunately for Warner Brothers, the tattoo art was already registered copyright belonging to Whitmill.

The Infringement

In one popular scene of The Hangover Part II, Ed Helms’ character, Stu, wakes up to find that he has a fresh new tattoo, with no memory of how it got there. That tattoo is identical to Mike Tyson’s face tattoo. Stu is a characteristically uptight, responsible member of the group in the movie, though he also tends to get into the most outlandish shenanigans on their drunken nights. The tattoo was worn for most of the movie.

When Whitmill, who had just received copyright registration for the tattoo art, became aware of this, he filed a copyright infringement suit. He requested an injunction to stop the film’s release date, which was denied by Judge Catherine D. Perry due to the great risk of financial harm not only to Warner Brothers but to the movie theaters who promoted showing the movie. 

She did, however, push forward his request for a permanent injunction (which would stop the distribution of the movie) and said that in her opinion there was a likelihood of Warner Brothers being held liable, since they used the tattoo art without Whitmill’s consent. 

But what about drawings of Tyson or photographs of Tyson that included the tattoo? Would each of these instances, of a very prominent figure, count as copyright infringement? Prior to this case, there had only been a few copyright cases involving tattoos, and no strong precedent about copyrights with respect to an image on someone’s skin. However, Whitmill had apparently considered this. In a tattoo release form that Tyson signed, it stated that any artwork related to the tattoo or photographs of the tattoo were property of Paradox-Studio Dermagraphics, Whitmill’s business.

At one point, Warner Brothers offered to alter the tattoo digitally for the screenings of the movie. Eventually, however, they settled with Whitmill and the tattoo remained the same.

What Is “Fair Use” and Does It Apply?

Warner Brothers’ primary defense was “fair use.” They claimed the tattoo was a parody and therefore fell under the fair use doctrine, which allows for limited use of copyrighted work without gaining the consent of the copyright owner. The USPTO looks at four different factors when considering fair use:

  1. The purpose and character of the use, including whether it was commercial or nonprofit
  2. The nature of the copyrighted work
  3. The amount of the copyrighted work used
  4. The effect of the use on the value of the copyrighted work

There is no minimum amount of use that qualifies automatically for the fair use exception so you cannot take a small clip of a song or a video and assume that you are not infringing. In the above case the judge found no parody in the use of the tattoo and pointed to the fact that the entire tattoo was shown throughout the movie. In this case, fair use simply didn’t apply.

While Warner Brothers tried to call Whitmill’s case “silly” and others may have thought that it was an overreaction, one thing that this case makes clear is that Whitmill was able to protect his intellectual property against a Hollywood studio giant, all because he took the right precautions with copyright and licensing agreements. Garcia-Zamor can help you do the same. Contact us today to learn more or to schedule a consultation.