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What has Mike Tyson and “The Hangover 2” got to do with Copyright?

For anyone that’s not already aware, “The Hangover” is a fairly popular comedy featuring a cameo from Mike Tysonthat was released by Warner Brothers in 2009. The film grossed over $450 million worldwide. As with most films that make any money, film studios are keen to capitalize on any success, and Warner Brothers are set to release “The Hangover 2” towards the end of May.

Spoiler Alert!

One of the characters in the upcoming sequel, played by Ed Helms, wakes up after a heavy stag-do drinking session with more than a hangover – a tattoo on his face, identical to Mike Tyson’s.

The Shrewd Artist

The next stage of this blog is not a movie spoiler, but the story of the entrepreneurial American tattoo artistresponsible for the tribal tattoo that adorns Mike Tyson’s face (as well as the face of unlucky Stag in the Hangover 2). This savvy ink artist had the forethought to have Mike Tyson sign a waiver to any Intellectual Property (IP) rights in the design that he emblazoned on Mr. Tyson’s face. He then proceeded to formally register his copyright in the design.

The Claim

As a result of our astute artist’s design being used as part of a gag in The Hangover 2, the copyright owner has now initiated a claim against Warner Brothers, alleging breach of copyright for the use of his tattoo design without permission.  

Analysis

1. Is it possible to copyright a tattoo?!?

 Short answer – Yes. Copyright protects the expression of an idea, not the idea itself. In the UK, it is possible to protect original:

 literary works;
 dramatic, musical or artistic works which are recorded in some way;
 sound recordings; 
  films or broadcasts; and
 typographical arrangements of published editions (i.e. layout and design).

The Mike Tyson tattoo would fall under the heading of an artistic work. Warner Brothers might argue that the tattoo design is not original as it originates from a tribal tattoo design. The threshold for originality is fairly low, works often have to be generic in nature to lack originality.

2. Why isn’t Mike Tyson the copyright owner?

In the same way a film director or producer would usually own the copyright in a film, despite not appearing in it, a tattoo artist owns an original tattoo design imprinted on another person’s body. It is his effort that created the work. Copyright for artistic work is owned by the artist. In addition to this, the waiver of any rights to the design of the tattoo signed by Mike Tyson clarifies the position further.

3. Did the Artist need to register his copyright in the tattoo?

Short answer – No. Long answer – Yes, but only because of US litigation law. In the UK it is not necessary and not possible to register any copyright, it is an automatic right. We understand that the same applies in the US. However in the US, it is necessary to register a copyright in order to be able to commence any litigation connected to it.

What we do

Our aim is to help clients achieve value for their ideas or businesses. The situation described above could have been diffused and costly litigation avoided by Warner Brothers obtaining the copyright holder’s consent to their use of the copyrighted works. As lawyers, we help to agree and document the terms of consents to many types of IP use. In this situation, either a waiver of rights by the tattoo artist or a copyright licence could have been used, depending on the deal struck between the parties.    

What you should do

If you have created any of the types of works mentioned above and that work is original, you don’t need our help to protect it, copyright is an automatic right. However, in order to enforce or exploit your rights, you may need to consider some of the following points:

 review your contracts: make sure you are either not giving up or are gaining the IP, such as copyright, when being employed, employing or working on a project.
 keep careful records: to ensure your work is original, it can be important to keep records of when it was created. Also, if you are subject to any contract relating to relinquishing any IP rights, records can help to show original work was created outside the scope of any such contracts.
 keep your eyes open: make sure nobody is using any of your copyrighted material without permission. We are able to help assess whether another person or company has breached your copyright or whether there use constitutes fair dealing or is their own original work. We can also help with the next stage, which can either be exploiting use or preventing use of IP.