Most of us have followed the Hangover 2 / Tattoo saga from the highly publicized efforts to prevent the movie's opening this past May. This summer saw the resolution of the very high-profile lawsuit against Warrner Bros over the film's depiction of a tattoo intended to parody Mike Tyson's tribal facial tattoo.
For many in the entertainment industry, this settled case now leaves new questions about production of feature films, reality TV, commercials - any of which might feature talent with tattoos. How zealous do we now have to be in clearing these works of body art? And how careful do celebrities or actors or.. anyone.. have to be in securing the copyright for their tattoos - if they can - when they get the work done?
The case also no doubt left many producers a little shakier about the parody defense, and Fair Use in general. Relying on that kind of defense while boldly ripping off an artist's work was a bit naive, since the film was parodying a situation or a character perhaps more than an actual work of art... if you follow that logic. When Weird Al sings "Eat It" to the tune of Michael Jackson's "Beat It," there is no question that he's parodying a song. This film really copies an artist's work, almost line for line, to make a joke. A subtle difference but a difference nonetheless. And so, the joke was on them in the end.
It possibly came as a big surprise to a lot of people, not the least of whom were the Warner film producers, that a tattoo artist could claim copyright protection. But the suit was taken very seriously by the judge of the federal court which, although it denied the artist's request for an injunction (to prevent distribution and exhibition of the film) did "see merit" in the case.
This case is interesting in that it illustrates an important (and often confusing) point of copyright law: One can own an original work of art and yet not have the right to sell copies or reproductions of it.
S. Victor Whitmill, the tattoo artist who gave Tyson the original tattoo in Vegas in 2003, claimed that he owned the copyright on the original tattoo on Tyson's face. The artist claimed that he had an agreement with Tyson that Whitmill would retain the rights to the tattoo. He supposedly registered the work for copyright in April, 2011 (shortly before filing the lawsuit). Whether the agreement with Tyson was an oral or implied agreement, or one that was committed to writing, it doesn't matter much in copyright law. Nor is a formal registration required, although it probably helps to bolster the artist's case.
According to copyright law, as expressed in this US Copyright Office FAQ: "Your work is under copyright protection the moment it is created and fixed in a tangible form that is perceptible either directly or with the aid of a machine or device." So, you paint it... it's in a tangible form, it is protected.
I got a call, recently, from studio colleagues who are working on an anthology of drawings and illustrations. They were surprised to find that they might have to approach an artist for permission to use his artwork in their book, even though the owner of the illustration gave them permission. If you think it through, you can see some logic for this. If an artist does a painting, and sells the original, he/she can still sell lithographs or other numbered copies of the original, and would be the sole person to retain that right, by law, unless it was transferred by a written agreement.
Both instances - tattoo and oil painting - illustrate the same principle of copyright law which is, quite literally, the right to make copies of and distribute a protected work. Giving up the original art doesn't necessarily surrender the right to copy it, or "copyright" that is automatically awarded to creators of original works, by law.
According to a May article in the NY Times, there are a few precedents for such tattoo lawsuits as the Hangover disaster: "David Beckham and his favorite tattooist, Louis Molloy, had a public dispute that year over his plan to highlight them in an advertisement. The feud culminated in an interview with Mr. Molloy in The Daily Mirror that ran under the headline - I Own Beck’s Tattoo .. and I’ll Sue.”
Predictably, Warners sought to invoke a Fair Use argument. They argued that the use was parody, and the inability to make fun of this in its depiction would stifle the creativity of the producers. Fair Use involves a number of factors, including how much the protected work is featured in the derivative work, whether it truly is parody, commercial benefit derived from the use of the work, and... most importantly... the question of whether something new was created using the derivative work, or if the original was merely copied. Since some of these arguments can be subject to counter-argument (as we've seen here) and since most producers don't want to end up in court, these works are often either cleared and paid for up front to avoid later claims (Warners wishes that it had taken that course, you can bet), or the claims are settled out of court.
Why didn't they clear it? This is a new area of law, and it is evident that no one thought that it was going to get to this point. They must have really though the Fair Use argument was strong enough that there wouldn't be a challenge to the use. Besides, it's only a tattoo, right? 20/20 hindsight shows that they were sadly mistaken in whatever logic they exercised, and that is why the people that do clearances have jobs (yay!) Although, a script clearance person may have lost theirs, over this particular fiasco. I'd like to think that this got flagged and the producers chose to charge ahead, anyway. That has happened to me more than once, sometimes it works out OK for the producer, and sometimes not. Most cautious producers would rather clear than risk a lawsuit, particularly if it can be cleared easily and for a reasonable license fee. In many cases it's easier to clear it, certainly easier than adhering to a point of law that might be questionable. (End of self-promotion).
I will add that there are clear-cut cases of Fair Use where producers of derivative works should obviously exercise their rights, notable ones being the Obama artwork that was itself the subject of a lawsuit, and the Wikipedia / FBI face-off - both discussed earlier in this blog. In any event, one must do a thorough analysis and make the best decision given one's understanding of the law, and the realities of clearing or not clearing the work. I also constantly refer people to the Center for Social Media website which, although it's really geared to documentary filmmakers, still gives a lot of understanding of Fair Use principles for any producer.
Celebrities and others who may anticipate needing the copyrights to their tattoos may think twice about paying for and getting a release of the rights when they get their tattoos done. And it might become customary for these kinds of written agreements to go into use, where the artist is granting all of the rights to the client, and warranting that it's an original work, and perhaps even indemnifying the actor against any claims. Of course, that might mean some larger fees to the artist as well.