Over the course of four decades in the public eye, there have been many faces of Mike Tyson: heavyweight champion of the world, “baddest man on the planet,” reformed felon, fledgling actor, and, most recently, speech therapist. But since 2003, there has been one element of the Mike Tyson persona that has never changed – he is the owner of one of the world’s most famous face tattoos.
Recently, Tyson’s ink has brought two combatants into the legal ring. The artist who created the notorious tattoo has sued Warner Bros. Entertainment, the studio behind the film, “The Hangover Part II,” for copyright infringement, claiming that the face tattoo sported by one of the characters in the movie copied his signature design. In the movie, the character, played by Ed Helms, wakes up after a debauched night in Bangkok with a tattoo reminiscent of Tyson’s along the left side of his face.
The artist, S. Victor Whitmill, who lived in Las Vegas at the time he designed the Tyson tattoo and now lives in rural Missouri, originally filed suit on April 28 in U.S. District Court in Missouri, requesting an injunction halting the release of the film. The judge denied that request, after the studio argued that an injunction would inflict irreparable harm on the studio, which had spent over $80 million to promote the film in advance of its May 26 opening. The Hangover Part II went on to gross $137.4 million in its first five days of release, more than any R-rated film in history; to date, the movie has raked in over $562 million (and counting) in worldwide ticket sales.
Motion picture studios often find themselves on the receiving end of copyright infringement lawsuits, and in most cases they knock out their opponents like Tyson in his prime. But there may be signs that this lawsuit is no Glass Joe.
Whitmill claimed that he conceived of the Maori-inspired design for Tyson, called it “tribal tattoo,” and after inking the former heavyweight champion, claimed it as a copyrighted work. Under copyright law, the creator of the original expression in a work is its author, unless there is a written agreement, commonly known as “work-for-hire,” by which the author assigns the copyright to another person or entity, such as a publisher. In the case of a work-for-hire, the commissioning party is considered to be the author. Tyson and Whitmill did not enter into a work-for-hire arrangement when Whitmill created the tattoo.
Warner Bros. could argue as potential defenses at trial that the copyright is invalid, that the studio sufficiently altered the design to avoid infringement, that the depiction is covered by the doctrine of “fair use,” or that the depiction in the movie was a parody of the Tyson tattoo. However, in denying the injunction, Judge Perry also declined to dismiss the suit and suggested that Whitmill would likely prevail.
In June, a trial date was set for February 21, 2012; Whitmill had requested an August 2011 trial, in part to resolve the dispute in advance of a DVD release of the movie. But Warner Bros. submitted documents saying an expedited trial was not necessary because the studio already plans to digitally alter the tattoo on Helms’ face in every frame of the DVD version. Reports have estimated that it could cost Warner Bros. more than $1 million to make such alterations.
For his part, Whitmill took great pains to avoid entangling Tyson in his complaint, stating “this case is not about Mike Tyson, Mike Tyson’s likeness, or Mike Tyson’s right to use or control his identity.” For Whitmill, this was a commendable legal – and personal – strategy: after all, you do not want to make Mike Tyson angry.