Hangover Tattoo Lawsuit: Can You Copyright Flesh?

An esoteric debate has surfaced in the legal flap over a tattoo appearing on a character in the Thursday movie release of The Hangover: Part II.

It surrounds the question of whether a work first rendered on the human body can be copyright.

The nation?s top cited copyright scholar, David Nimmer, doesn?t think so. The author of Nimmer on Copyright was an expert witness for studio Warner Bros., which is being sued on accusations of misappropriating an artist?s copyrighted tattoo originally emblazoned on Mike Tyson?s face.

David Nimmer

Since 1985, Nimmer, a UCLA law professor and practicing intellectual property attorney, has been?continuously?updating his late father?s Nimmer on Copyright, which LexisNexis claims is ?cited in more court opinions than any other treatise on the subject of U.S. copyright law.?

He wrote the judge presiding over the tattoo case that?he?believes?the ?body, even as augmented, simply is not subject to copyright protection.?

Tattooist Victor Whitmill, who brought the case against Warner Bros., had testified that he created the image directly on Tyson?s skin.

Nimmer, though,?acknowledges?that his position has evolved. In?a 2000 case he covered in his treatise, he ?tacitly assumed that a tattoo could ?presumably quality as a work of graphic art, regardless of the medium in which it is designed to be affixed? such as human flesh.?

U.S. District Judge Catherine Perry of Missouri?last week blocked Nimmer from testifying on behalf of Warner Bros., after Whitmill?s attorneys objected on the basis that his filing was a legal opinion ?on what copyright law should be? rather than expert testimony.

The judge, however, declined earlier this week to block the movie from debuting Thursday. The litigation is ongoing.

The lawsuit claims the movie features a ?virtually exact reproduction? of the original tattoo that appears on the Stu Price character played by actor Ed Helms.

Ann Bartow, a USC law professor, accuses Nimmer of having a convenient change of heart to serve his client.

?Nimmer admits in paragraph 15 that he ?used to? think tattoos were eligible for copyright protection and ?even posited one line to that effect in a footnote? in his copyright treatise,? Bartow wrote in a blog post. ?But now he is representing Warner Brothers, he realized he was wrong.?

Nimmer, of Los Angeles, said in a telephone interview that he began to ?reconsider that proposition? a decade ago because ?augmentation of the body should not be copyrightable.?

In his legal filing to the judge, he explained why:

The tattoo qualifies as an original ?work of visual art? that may gain??recognized stature,? with the result that a court may enjoin its destruction. See 17?U.S.C. ? 106A(a)(3)(B). After a court invokes that provision to bar him from removing?his tattoo, Mr. Tyson literally may not show his own face to the world; that is, he will be?required to keep Mr. Whitmill?s handiwork spread across his face, regardless of his own?desires. Copyright law thereby becomes the instrument to impose, almost literally, a?badge of involuntary servitude, akin to the mark with which ranchers brand the cattle?they own.

It?s not the first time a tattoo artist has wanted to cash in on infringement allegations. In a 2005 federal case settled out of court, an artist who tattooed NBA star Rasheed Wallace?s right arm sued to stop the forward from ?displaying? the tattoo in Nike advertisements.

Michael Kahn, Whitmill?s attorney, said in a telephone interview there has never been a court verdict about whether a copyright on a tattoo can be enforced. Whitmill has copyrighted the tattoo he inked in 2003 on the former heavyweight champ?s face.

He said he and Warner Bros. have talked settlement, but they weren?t ?serious discussions.?

?Ninety-five percent of civil cases settle,? he said in a telephone interview. ?Whether we?re going to be part of the 5 percent or 95 percent, I don?t know.?

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