The bizarre legal saga over a fake face tattoo is over today, as S. Victor Whitmill settled out of court with Warner Brothers. Whitmill, who filed the suit back in April, was suing the film studio over their unauthorized use of the iconic tattoo he inked on infamous pugilist Mike Tyson, claiming that Warner Brothers violated his copyright by prominently featuring his art in The Hangover II.
The details of the settlement are confidential.
When we first examined Whitmill’s case, we examined some of the legal issues surrounding tattoos and the first amendment. What we didn’t know was how Whitmill’s lawyers would litigate the case. On May 24th, they asked a judge to block the release of the movie until the suit was decided, and although the judge was sympathetic to Whitmill’s claims, she allowed the movie to open. It has since grossed half a billion dollars.
But judge Catherine D. Perry seemed persuaded by the artist’s claims. She called Warner Brothers’ defense “silly,” noted that the tattoo was used prominently in ads for the film, and found that Whitmill had “[lost] control of his design.” And although we’d speculated that Warner Brothers would use the parody defense, Judge Perry surprisingly rejected this claim as well.
“This was an exact copy,” she said. “It’s not a parody.”
Add it all up and you can see why Warner Brothers was sweating. The judge’s language and curt dismissal of many of their defenses allowed the possibility of a later injunction, a cut of DVD sales, or some other form recompense. With The Hangover II being the highest grossing R-Rated movie ever, it makes sense that they settled.
The big take away for artists in this case? Simple. Copyright your work. One reason Whitmill’s case was so strong was his savvy copyrighting of the indelible mark he left on Tyson’s face. Calling the tattoo “artwork on 3-D object” — we love that — Whitmill registered his creation in mid-April of 2011, years after the tattoo was originally inked, but just weeks prior to filing his suit. This gave him the right to use his art as he saw fit or, for that matter, prevent others from using his work without his say so.
Next time around, we’re betting Warner Brothers asks permission.
- This Tattoo is Under Copyright, Says Mike Tyson’s Tattoo Artist (legallyeasy.rocketlawyer.com)
- S. Victor Whitmill v. Warner Bros. Entertainment Complaint (documentcloud.org)
- Mike Tyson’s tattoo artist can’t stop “Hangover II” (salon.com)