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Tattoos and Copyright in The Hangover Part II

You may or may not be aware that The Hangover Part II is coming out this weekend. You also may or may not be aware that there is a copyright battle heating up over one particular aspect of the movie.

Tawaiho, the Maori king of New Zealand, ca. between 1900 and 1923 (Source: Library of Congress Prints and Photographs Division)

As in the first movie, the character played by Ed Helms wakes up to something different about his face – this time the presence of a tattoo similar to the one on Mike Tyson’s face, who also appears in the movie. Now the designer of the Maori-inspired tattoo, S. Victor Whitmill, is claiming copyright over its design and has filed a suit against Warner Brothers Entertainment. The suit asks Warner Brothers to stop using the tattoo in its posters or in the movie. Because the tattoo features prominently in The Hangover Part II movie poster and the movie, this would effectively stop the film from being released.

Warner Brothers replied by denying that it appropriated anything belonging to Whitmill and the allegation of copyright infringement. Warner Brothers also denies that a tattoo on the skin can be copyrighted. Warner Brothers also says the use of the tattoo falls under fair use in the Copyright Act and that Whitmill didn’t make any allegations when the tattoo appeared in The Hangover on Mike Tyson’s face.

The Freakonomics blog has an interesting analysis of “Can You Copyright a Tattoo?” The blog post does find that tattoos could be subject to copyright as “graphic art” and throws doubt on the “fair use” defense by Warner Brothers. However, it also addresses the issue of the mobile nature of tattoos, especially on a celebrity’s face and, in the end, declines to say whether tattoos should be copyrighted.

If you would like to know more about Copyright, look no further than the Copyright Office, which is part of the Library of Congress. Their Copyright Basics manual has a lot of helpful information. Their website also contains Title 17, the Copyright Law of the United States. The subject matter of Copyright is outlined in 17 U.S. Code 102 and does include “pictorial, graphic, and sculptural works.” The definition of “fair use” is provided in 17 U.S. Code 107.

The New York Times also covered the allegations. Their article cited a previous case involving a tattoo artist, Matthew Reed, suing basketball player Rasheed Wallace and Nike over a commercial that outlined a tattoo as Wallace discussed why he had it created and what it meant. That case settled outside of court.

Since the tattoo in question in The Hangover Part II and on Mike Tyson is Maori-inspired, I thought I would get some insight from Kelly Buchanan, our foreign law specialist from New Zealand, who has spoken before on the recognition and protection of Maori culture. She explained that “ta moko,” the traditional art of Maori tattoo, is of great significance to the Maori culture and tattooing is considered a sacred act.  The designs symbolize a person’s ancestry, accomplishments, and connections to their tribe and land. A tattoo, or “moko,” is therefore a mark of a person’s identity.

The use of the designs by non-Maori is a particularly sensitive issue. For example, in an article about the Warner Brothers case a professor who is an expert on Maori tattoo is quoted as saying:

It is astounding that a Pakeha [non-Maori] tattooist who inscribes an African American’s flesh with what he considers to be a Maori design has the gall to claim that design as his intellectual property. The tattooist has never consulted with Maori, has never had experience of Maori and originally and obviously stole the design that he put on Tyson. The tattooist has an incredible arrogance to assume he has the intellectual right to claim the design form of an indigenous culture that is not his.

So if you do go to see The Hangover Part II this weekend, enjoy knowing a little more information about the tattoo in the movie!

4 Comments

  1. Nate Talbot
    May 27, 2011 at 7:40 am

    I would believe that a tattoo would definitely contain copyright, no less than an original drawing or a photograph. However, in this case, I would have to say I agree with the professor. At best, the tattoo artist claim would be a derivative work. Additionally, seeing as if he published his work on a celebrity’s face, Warner Bros could at least claim their use as parody, therefore qualifying it as fair use.
    It’ll be interesting to see how a court decides. Hopefully it won’t settle, so we can see.

    Nate Talbot

  2. Caren Rabinowitz
    May 27, 2011 at 1:48 pm

    I agree with Nate. I would further add that a person with standing to sue would be a Maori whose tattoo the one in question most closely resembles. If, as the professor writes,a tattoo is an expression of an individual’s identity, then we may have a case of identity theft or maybe a tort claim based on unauthorized use of a person’s likeness. I definitely see a law review article in the making.

  3. ginger leuschner
    May 27, 2011 at 8:13 pm

    There is only one original tattoo and i garuntee it will never fade from history.Afterall I will never sell my face and I garuntee the owner ofr the tattoo would not niether.

  4. Jay D
    August 11, 2012 at 9:06 am

    Did anything come from this? Did the tattoo artist win anything? Or was it just forgotten? I was curious to see what would come of this but I guess it qualified for fair use. If he would of won wouldn’t this make tattoo quotes illegal to do as well?

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