June 2, 2011

Whitmill v. Warner Bros.

Warner Bros. is being sued by the author of Mike Tyson’s tattoo S. Victor Whitmill
– can an artistic work depicted on person’s face be copyrighted?
Mike Tyson’s fancy face-tattoo artist, S. Victor Whitmill, filed a copyright lawsuit against Warner Bros. for its use of his “art” on one of the lead characters in The Hangover II on the revered "STU" played by ED Helms. Whitmill doesn’t only want lots of dough from Warner Bros.; he also wants the court to grant an injunction, preventing the movie’s release to over 3600 theaters on 7000 screens over Memorial Day weekend.
Whitmill permanently affixed the “tribal tattoo” on a “3-D object” (aka the side of Tyson’s face) in 2003, but he didn’t file for copyright protection until April of 2011, just days before filing the federal lawsuit against WB. Obviously, the filing isn’t required immediately upon creation of the object; however, in order to make a legal claim of a copyright violation, a filing must accompany the lawsuit. The question here is whether the nature of the medium in which an artistic work is fixed is relevant for acquisition of copyrights in that work, the fixation of work being the upper left side of Mike Tyson’s face, being the tangible medium of expression.
Other important facts include -
1. Whitmill’s very-recent filing and other behavior is certainly evidence that he previously didn’t have a problem with the tattoo’s use by others. The Hangover was released in 2009 and Whitmill didn’t complain. He didn’t complain when Tyson applied for trademark protection of the tattoo in January of 2011. He didn’t complain after Tyson appeared in two other movies — Mike vs. Tyson: The Battle Rages On (2004), or Tyson(2009), a documentary about the boxer’s life. Both movies’ advertising material display Tyson’s tatted face.he advertising material is a picture of Tyson with the tat. Whitmill didn't complain when a Mike Tyson doll was created with the tattoo on its face. He didn't complain when a mobile "app" was released that includes Tyson's tattoo.
2. The unusual part against Whitmill is he didn’t complain when teen heartthrob Justin Bieber sported the artistic creation! Remember, there are two parts to this case: whether the judge prevents WB from releasing the movie, and then whether there was an underlying copyright violation.
There is absolutely no way the judge is going to stop Hangover II from its release. Not only does the judge surely want to see the sequel to one of the most hilariously inappropriate movies of all time, but Warner Bros will suffer irreparable harm if the movie isn’t released.
I most conceitedly look forward to the Hangover II ..!

1 comment:

B P K said...

yet again, the producers SETTLED the Case before it came for hearing..

In my views, the reason would not be any sort of copyright infringement, but rather that the Producers didn't want to get involved into a costly litigation and hence, felt better to shut Mr. Tattoo Artist up with some good money for him, yet penny for them !!!

The reason I say this is though Tattoo can definitely be copyrightable, and why not, its a piece of art, made on a tangible medium, perceivable by senses and recognized by common man... The Point is, who has the ownership over it..
As far as I understand, ownership of a copyright lies with the Person who causes it to create unless stated otherwise by an agreement. (Something what has been mentioned in Section 17(b) of ICA, 1957) Further, getting a tattoo made, I believe should be a part of 'contract for service' and hence in this case, the person asking the 'artist' make such tattoo would be having the copyright over all such 'arts' (and for the instant case, if we also consider that the design was anyways a copy of some older art, from Mr.Maori's book in this case, then no CR exists in any case, coz of application of provisions similar to Section 13(3) of ICA)..

Keeping in mind that Mike Tyson, who is the real owner of the copyright (if any), was a part of the film, and that he had no issues even talking about the tattoo in there, i.e., he had information about it and still no grudges, leaves the 'Tattoo Artist' in no position to claim any copyright.

Hence, in my view, it was just another frivolous lawsuit which had to be settled by the producers who generally have a practice to 'think big'....

p.s. Since my tattoo 'artist' didn't get my sign any agreement or bond or anything of that sort, I am assuming that that's the 'practice' elsewhere too...