Tattoos and “The Hangover” Sequel
In non-John Bingham news, the artist who designed and applied Mike Tyson’s facial tattoo is suing Warner Brothers for copyright infringement because Ed Helms plays a character in the new “Hangover” movie with the same tattoo. Warner Brothers is claiming, among other things, that the depiction of the tattoo is fair use because it is a parody of the original. This leads me to ask two questions.
First, is this really a copyright claim or is it a right of publicity claim that belongs only to Tyson? People have noted that Tyson appeared in the first “Hangover” movie and that the tattoo artist did not sue. If it was not copyright infringement then, why is it now? Moreover, is the tattoo best understood as a work of graphic art (which is conceptually separate from Tyson’s face) or as part of his likeness? It seems to me that the value of the tattoo is really about its association with Tyson and not in its intrinsic merit.
Second, this ought to lead people to question whether tattoos should be copyrightable. (You can, BTW, ask a fun trademark question about whether somebody who wears a visible tattoo of a famous corporate logo can, under certain circumstances, be required to have it removed as trademark dilution.) In my utilitarian view of intellectual property, there is no worthwhile argument for allowing tattoo (or architecture) copyrights. Unfortunately, I think that gets swallowed by a sense that a denial of IP protection is a comment on the status of those arts. When we say that some fields do not deserve robust property rights (hairstyles, jokes, recipes, fashion designs, etc), that is not a statement that these creative works are less important to society than books, movies, or music. But many people do view it that way, and so long as they do the pressure to expand protection in these heretofore unprotected domains will continue.