If tattoos are copyright protectable, what about breast reconstructions and what is considered fair use?

 The tattoo artist Victor Whitmill who designed and tattooed the left side of former heavyweight champion Mike Tyson back in 2003 has now sued Warner Bros for copyright infringement.

The basis of the claims are allegations that the studio has copied the tattoo design in its upcoming movie, The Hangover Part II. Whitmill has requested an injunction to prevent the film from copying, distributing and publicly displaying the design in the film and promotional marketing of the sequel to the 2009 box-office success, The Hangover.

Whitmill created the tattoo for Tyson in February 2003. The copyright in the tattoo design, is owned by Whitmill and Tyson has additionally signed a release acknowledging that he doesn’t have rights. The complaint argues that Whitmill has never reproduced, authorized or licensed the design to anyone else, making Warner Brothers use of the design “reckless”.

Whitmill claims that the Warner Brother’s film, The Hangover 2, features a “virtually exact reproduction of the Original Tattoo, which appears on the upper left side of the Stu Price character’s face, played by actor Ed Helms.” One complication in this complaint is that Mike Tyson appeared in the first The Hangover movie in 2009. For more information on this case, see The AmeriKat.  

Here’s my question. If a plastic surgeon (he) resculptures a pair of breasts for a client, does he have copyright in them? Is there an implied license that the client’s (her) display of his work in photography and film is acceptable? Would this be considered fair use? I expect that the answer to both questions would be yes. However, even if the assumed license and fair use would cover the magazines and film studios, would the plastic surgeon have standing if such images were reproduced illegally against the bootleg copier? She wouldn’t, but would he?

Categories: Copyright

1 reply

  1. IMHO, Same rules may apply here as with recordings (see, for example – http://www.psakdin.co.il/fileprint.asp?FileName=/Ip/Private/ver_dird.htm – Lidia Offir vs. Media Direct) acknowledging an innate difference between rights of the creator in his creation and the rights of the producer of the masters from which distribution copies were produced. Indeed, Hon. judge Ruth Ronen determined that there IS a difference between the rights of the creator of the original creation, and the rights of the producers of the masters. So (again. IMHO, while Victor Whitmill holds the rights to the design, it is Tyson (as the ‘master’ on which the movie is based) owns the rights to the tatoo on his face, and as Tyson (probably) signed with the producer of the film, they now own the right to use it in the film. Merchandising is a different take, however I’m not sure that copyright protection should exited to reproducible art (a design protection may be more appropriate…). Ronen.

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