Guest Post: What do Mike Tyson, tattoos and copyright have in common?

Thanks to Lynell Tuffery Huria for this article.

Mike Tyson and tattoos are no strangers.  But the tattoo artist who designed Mike Tyson's well-known facial tattoo is claiming the use of his design in the movie The Hangover: Part II is copyright infringement, and he wants compensation.

 

Last Tuesday’s decision did not stop the release of the movie, but the judge strongly indicated a decision in a permanent injunction hearing is likely to hold in favour of the artist, and compensation for the artist is likely.  But can the tattoo artist claim rights in artwork that are known to be based on traditional Māori designs?  Māori don’t think so.
 
S Victor Whitmill, former tattoo artist, filed a lawsuit in St Louis to stop the release of The Hangover: Part II^TM, because he claims he owns copyright in Mike Tyson’s facial tattoo that he designed.

The judge refused to stop the release of the movie for public interest reasons, citing that to stop the release of this movie would cause undue hardship on not only the movie producers, but also cinema operators and workers, who rely on the release of movies for income.

Instead, the judge indicated that Mr Whitmill had a “strong likelihood of prevailing on the merits for copyright infringement” and may have a good claim for damages in a subsequent hearing.

The judge did not consider the origins of the design, and whether Mr Whitmill can make a claim to a design that is based on traditional knowledge from a culture that is not his own.

Many Māori are enraged that an artist, who has no affiliation to Māori, could claim that a design based on traditional Māori design is his own.

With estimated box office sales in excess of US$118m since the movie’s release on Thursday, it is expected the parties are now likely to settle.  But if the case goes to a subsequent hearing, then the decision could review two important issues:

1. Can an artist claim and enforce copyright in a tattoo or artwork that appears on another person’s body?
2. Is this right affected in any way if the tattoo or artwork is based on traditional designs from a culture that is not the artist’s own culture?

If settled, the decision will help indigenous peoples in their plight to stop the misappropriation of their designs.  Will this hangover continue?