Does the copyright infringement of a tattoo threaten the Memorial Day release of The Hangover 2? Shadowlocked's very own Luke Connolly and Nicole Ugrin investigate...

Co-written by Luke Connolly

S. Victor Whitmill, tattoo artist, has filed suit against Warner Brothers for copyright infringement. Advertisements for The Hangover 2 show Ed Helms waking up with a Mike Tyson-style facial tattoo, and Whitmill, who created Mike Tyson's tattoo in 2003, believes that the unauthorized use of his creation constitutes a breach of his copyright as its artist. The film, which is due for release on Memorial Day weekend, is the highly-anticipated sequel to 2009's The Hangover, winner of the Golden Globe for Best Comedy and one of the top-grossing films of that year.

The lawsuit states that "When Mr. Whitmill created the Original Tattoo, Mr Tyson agreed that Mr. Whitmill would own the artwork and thus, the copyright in the Original Tattoo," and was filed on Thursday in a federal court in Missouri and obtained by THR. The lawsuit continues, arguing that "Warner Bros. Entertainment, Inc. — without attempting to contact Mr. Whitmill, obtain his permission, or credit his creation — has copied Mr. Whitmill's Original Tattoo and placed it on the face of another actor. This unauthorized exploitation of the Original Tattoo constitutes copyright infringement."

So, in response to this supposed infringement, Mr. Whitmill has filed an injunction against the film, which would essentially delay its release until said claims are satisfied by the court (or out of court, in a monetary settlement). Furthermore, he has requested that the studio be blocked from showing the tattoo in the film and in addition demands an unspecified amount of cash.

The first question concerns the legitimacy of Whitmill's claim. He apparently did create Tyson's tattoo, and registered the copyright with appropriate paperwork. He included a release signed by Tyson with the paperwork, granting Whitmill rights to the work. So far, so good.

However, Warner Brothers have a few different avenues of argument. The first would be to argue on the technicality of the copyright itself. That would depend upon Whitmill not having all his paperwork completed properly; basically not having his legal ducks in a row. The second would be to show that The Hangover 2 changed the tattoo just enough to avoid copyright infringement. To a layman, though, that seems like a tough argument to prove, seeing as how Mike Tyson was in the first movie, tattoo and all! The argument that carries the most weight, then, would be that the tattoo is a parody. An homage. A joke. (In a comedy film? A novel idea for sure!) The tattoo is obviously a direct reference to Tyson. It's not unrelated.

I would never argue that Whitmill doesn't have the right to his own artwork. However, a reference to his 'Original Tattoo' doesn't actually take anything away from Whitmill, or from Tyson. If anything, it's going to increase their popularity. So what does Whitmill stand to gain from this lawsuit? Well, timing the release of a major film like The Hangover 2 is practically a science. No way is WB going to miss a holiday weekend release for this movie. Whitmill requested that the tattoo not be shown in the fim - yeah, I'm sure WB are going to go back into post-production and white-out half of the lead actor's face. His FACE. Plus, they'd have to go back and revise dialogue, jokes verbal and visual, and I just don't see that happening, either.

To be honest, I do wonder as to how Mr Whitmill will prove this. What's to stop WB claiming that the tattoo is different to that of his apparent copyright design? Also, one would assume he has copyrighted a tattoo; obviously the one on Stu (Ed Helms) is make-up, so, as the two are different elements, on what grounds does his lawsuit stand? Copyrights, as a generalisation, are very specific, so you can be sure that WB will look to exploit the lack of copyright on make-up; regardless of the fact that it may be of the same design.

Yet it is the legal minefield that this case could open up that is most intriguing. Let's say, for sake of argument, that Mr. Whitmill does win his case. By this logic, every tattoo artist who had replicated a copyrighted cartoon character - or used the image or likeness of another person - would be liable. If permission was not gained, they would have directly infringed on the personal rights of said owner, thus allowing for legal action and/or compensation. While America may have become the Mecca of obscure lawsuits (see opposite), high court judges are expected to rule with a degree of discretion; and the implications of allowing such a suit to succeed could be devastating.

On top of this, there is much uncertainty as to how much a tattoo's design or its creation can be copyrighted. As far as I can tell, the only clear area of copyright involving tattoos is that of a Tattoo Flash. For those of you unfamiliar with the tattoo industry, a Tattoo Flash - as it's known - is the image typically displayed on the walls and in portfolios of a tattoo parlour to give customers an idea of the kind of work they can receive.

This lawsuit is either a worrying development for WB, or an ethically wrong - if not ingenious - marketing tool for the upcoming film. For all we know, Mr. Whitmill may have already received a pay-off in regards to the tattoo, and is merely bringing the case against the company to raise public awareness of the film. However, if this turns out to be a factual lawsuit, our claimant certainly has a battle on his hands. For one, his legal team are coming up against corporate giants and their legal representatives; can you imagine the money behind the WB team? Any dirt, foul play or wrongdoing of Mr. Whitmill's will be surfaced and used against him - if he pushes them - in order to ensure this film's release. However, for me the main battle still lies in his attempts to prove his credibility as the original creator of the design. I don't know much about tattoos, but for me the design looks worryingly similar to that of the tribal tattoos used by many of New Zealand's ancestors, specifically the Maori tribe. Whatever happens, we will be sure to keep you up to date; but for fans of the comedy, don't fret - even if they have to pay out, what's a couple of million to a company worth more than $3.5 billion?

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