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Tattoos and “The Hangover” Sequel

Gerard Magliocca

Gerard N. Magliocca is the Samuel R. Rosen Professor at the Indiana University Robert H. McKinney School of Law. Professor Magliocca is the author of three books and over twenty articles on constitutional law and intellectual property. He received his undergraduate degree from Stanford, his law degree from Yale, and joined the faculty after two years as an attorney at Covington and Burling and one year as a law clerk for Judge Guido Calabresi on the United States Court of Appeals for the Second Circuit. Professor Magliocca has received the Best New Professor Award and the Black Cane (Most Outstanding Professor) from the student body, and in 2008 held the Fulbright-Dow Distinguished Research Chair of the Roosevelt Study Center in Middelburg, The Netherlands. He was elected to the American Law Institute (ALI) in 2013.

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14 Responses

  1. Patrick says:

    I don’t think I even understand your question about why it’s copyright infringement now but wasn’t when Tyson appeared in the first movie. Where are you seeing the possible infringement in the first movie? It’s not filming the tattoo that’s alleged to be infringement, it’s copying Tyson’s tattoo onto Ed Helms’ face.

  2. Gerard Magliocca says:

    Well, that assumes that the first sale doctrine applies to Tyson’s purchase of the tattoo. That may well be true, but it isn’t obvious that it does.

  3. Patrick says:

    I mean, at some point copyright doctrine does yield to the reality of living in the world. Regardless of whether you call it the first sale doctrine, automatic fair use due to the impossibility of reproducing Tyson’s image without reproducing the tattoo, or (most likely) an implied license granted by the tattoo artist, I do think it’s obvious that it’s not copyright infringement to take a picture of Tyson. On the other hand, copying the design of the tattoo and putting it on someone else’s face does look more like a colorable infringement claim to me, at least once you get past the threshold issue of whether tattoos are copyrightable in the first place.

  4. Gerard Magliocca says:

    True, but another reality is that people have been copying tattoo designs for centuries without any thought that they were infringing. Indeed, there’s a good chance that the artist for Tyson’s tattoo copied his design from somebody else.

  5. Bruce Boyden says:

    It might also have originality issues. I’d be interested to know what the universe of Maori tattoos looks like.

  6. As someone who has spent a fair amount of time talking with tattoo artists and thinking about their attitudes towards copying, I can say the approach we see here is not at all inconsistent with one common line of thinking within the community. Artists see themselves as providing a service to their clients, and that service entitles clients to make certain uses of the artist’s work, such as the public display that happens every time the client walks down the street. If we want to cast it in legal terms, we might call that implied license. But that license doesn’t extend to the filmmakers when the client, Tyson, isn’t on screen.

    And tattoo artists are keenly aware of the existence of copying by other artists. And they are hardly uniform in their acceptance of that practice. So to claim they simply give no thought to copying is just incorrect. The relationships here are far more complicated than they might appear at first glance. (I’ll save the rest for the paper.)

    As far as the suggestion that tattoos be denied copyright protection, I don’t see any principled basis for that sort of distinction. Tattoos, after all, are just a subspecies of pictorial works and often exist as traditional drawings on paper before being applied to the skin. If the suggestion is that commissioned art generally should not be eligible for protection on the basis of independent and sufficient incentives, I could maybe get behind that. But I don’t see anything unique about tattoos.

  7. Mike Madison says:

    The NYTimes story about this claim waved half-heartedly at the proposition that the initial tattoo wearer might be a joint author, with the tattoo artist, of the work. If that were true, then that would resolve the Hangover (I) issue neatly, because Tyson would have the absolute right to authorize public display of the tattoo. I understand that Tyson is personally involved with Hangover II. I wonder whether the filmmakers might defend on the ground that they obtained permission from *him,* as a joint owner.

    Also, I find it interesting that it seems to be taken for granted (not here, necessarily, but in other commentary that I’ve seen) that a person’s skin may be a “tangible medium of expression” either for initial fixation of the work of authorship, or for demonstrating reproduction of the work in a “copy,” or both. Tangible one’s skin certainly is; a “medium of expression” it may or may not be. “Internal” human organs do not qualify as tangible media of expression (e.g.: the brain); one could therefore imagine a comparable categorical exclusion for the skin as an “external” organ. The theory would go something like this: If it’s part of your body, then it’s you and yours, and it is not an alienable abstraction. (Something about Peggy Radin’s “personhood” theory of property sems apt here, but I’ll skip past that.)

    Moreover, tattoo art has existed for centuries, whether commissioned or not. Is it fair to treat tattoos as “just” a subspecies of pictorial works, either to tattoo artists themselves or to sensible copyright law? If tattoo art is a genre of its own, then the absence of a need for statutory incentives, and long-standing interests in access (cf. Bruce’s note about Maori art), seem obvious, at least to me.

  8. Gerard Magliocca says:

    These comments are quite interesting, I must say.

  9. Shag from Brookline says:

    Let’s hear from originalists on this issue.

    What if a performer got a Lady Gaga tattoo on her torso that could be “manipulated” muscularly to in effect perform? What rights might Lady Gaga have to enjoin or cash in?

    Can a tattoo be defamatory?

    If a house painter paints my house with a unique style, what are his rights if I exploit commercially my house? If I decide to have my house repainted by another house painter, does the prior house painter have rights to enjoin such?

    The claiming tattoo artist’s legal efforts at obtaining an injunction may fail, but if his case proceeds and he is successful at trial, his damages could increase substantially if as a result of his lawsuit more moviegoers spend big bucks to see the movie. (I’m assuming there is no collusion between the parties to the lawsuit.)

    But what did the founders/framers/ratifiers think about this?

  10. AF says:

    A seemingly relevant precedent is On Davis v. The Gap, 246 F. 3d 152 (2d Cir. 2001), which held that a Gap ad infringed the copyright of the designer of the model’s eyeglasses.

    This doesn’t resolve the issues that are particular to tattoos, or to the originality of the Tyson tattoo, or for that matter even the parody fair-use defense, but it does seem to suggest that the claim isn’t that far-fetched, at least under Second Circuit law.

  11. Mike, the joint authorship approach is an interesting one, but one that seems pretty factually dependent, especially since clients are often contributing ideas, but not expression.

    My point about tattoos being pictorial works was meant to emphasize that even if we buy into the notion that there is something unique about skin as the medium of fixation (I’ll just say I’m skeptical), the point is moot for purposes of protectability. Most works that end up as tattoos begin their lives as regular old ink-on-paper drawings.

    And yes, there are lots of works that receive copyright protection even though they would have been created in the absence of such protection. And copyright law might be far more sensible if we could exclude those works. But I don’t see any compelling reason to think tattoos are more deserving of categorical exclusion than any other type of work. In fact, for the reasons outlined above, I’m resistant to thinking about tattoos as a coherent or distinct category, at least for purposes of statutory interpretation and application. The Copyright Act, for better or worse, isn’t focused on genre or fine distinctions in medium of fixation,

    Certainly, there are instances when particular designs should be excluded. If the Tyson tattoo were simply a copy of a preexisting Maori design, it shouldn’t be protected. But we already have a well tested doctrine for dealing with those scenarios.

  12. Mike Madison says:

    All points well taken.

    I do wonder whether we will ever hit the outer limits of copyright protection, and how we will know it if we do. In some ways tattoos are entirely conventional copyrightable things. In some ways they are not. A tattoo that begins life as a drawing on paper is an ordinary and copyrightable pictorial work in its original, pre-inked form. If the claimant here can show such a genesis for the Tyson tattoo, then that part of the claim is much more straightforward. But then should he have to show that the filmmakers copied from that initial “copy” rather than from Tyson’s face? The doctrine might well say “no,” but note that Tyson’s face would be a derivative of the original, rather than a copy. The tattoo in situ is a three-dimensional representation of a two-dimensional original, and Tyson’s face, like anyone’s face, changes over time.

    I think that the more interesting case involves a tattoo that is “fixed” in the first place on the body, whether or not the design existed previously on paper. (If there is a paper version, then that would be a separately copyrightable pictorial work.) If we accept that sort of body-fixed copyrightable art, then there’s no reason to stop with tattoos; any other kind of body modification is potentially copyrightable. How about plastic surgery? Can a surgeon own the rights to a particularly pleasing nose? The doctrine certainly supports fact-based parsing here, but the idea just makes me uncomfortable.

    My last observation on the subject goes to (yet another) point that isn’t given much significance in the doctrine: The value of the tattoo at issue in Hangover II, from the filmmakers’ standpoint, has everything to do with the fact that the tattoo appears on Mike Tyson’s face and very little to do with the tattoo’s arguable status as a work of pictorial art. The claimant is seeking a windfall associated with the fact that he happens to have a famous and quirky former boxer as a client. I don’t see any evidence that the filmmakers are trying to appropriate the economic value of the tattoo as tattoo (or, whether or not they are trying to do so, I don’t see evidence that they have succeeded).

  13. Gerard Magliocca says:

    Mike,

    Your last point brings me back to what I asked in the post about whether this is a copyright claim or a publicity claim. It’s similar to the issue that arises when actors who are closely identified with famous characters (Norm & Cliff on “Cheers”) bring a publicity claim against the copyright owner for the use of their likeness — who is the rightful owner. That question has never been clearly resolved.

  14. Just to throw another set of facts in the mix, see this article from a few years back describing a tattoo artist who wanted a cut of the advertising cash generated by then NBA player Rasheed Wallace’s Nike ads – ads that prominently featured Wallace’s tattoos. http://sports.espn.go.com/espn/sportsbusiness/news/story?id=1992812

    This claim, for the reasons Mike and Gerard are circling, strikes me as much more problematic.

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