Week 3: FREE POST - Warner Bros. Forced To Fight For Fair Use

Sorry, I just can't let the copyright issue die.  I was reading the New York Times today and this headline made me so happy. :)

Warner Bros. Forced To Fight For Fair Use

For a visual gag in an upcoming movie, Warner Bros. copied the tribal art tattoo from Mike Tyson's face

Tyson's  Tribal Tattoo (Linked from NYTIMES)

Copy of Tyson's Tattoo on Movie Actors Head in a Sequel Movie Called Hangover II (Link from NYTIMES)

Apparently, the tattoo artist that designed and inked Tyson is claiming copyright infringement.  Here is an excerpt from the New York Times Story which helps frame his claims:

“One of the things that the copyright law gives you as an artist is control over your work — and he lost control here,” said Michael A. Kahn, the lawyer who is representing Mr. Whitmill. The complaint includes a photograph of the tattoo being inked and a statement from Mr. Tyson agreeing that “all artwork, sketches and drawings related to my tattoo and any photographs of my tattoo are property” of Mr. Whitmill’s business. 

The artist is clearly claiming ownership of the design and has proof that it is his.  This is consistent with Copyright law since he has recorded it in multiple fixed/tanglible works, including Mike Tyson's head.

However, Warner Bros. has made three arguments: 1. You can't copyright a tattoo, 2. Not being able to use this would harm their company since they already spent money to make the film, and 3) the use of this tattoo is "fair use" under the parody exception of copyright law. Here is another excerpt from the New York Times.

Warner Brothers in its brief also invoked the “fair use” defense for “Hangover Part II,” namely the right to parody what has become a well-known tattoo since it first appeared on Mr. Tyson’s face in February 2003.“That’s the real question: the copyright act balances the copyright owners’ rights and not stifling the creativity of the owners — it would stifle creativity to not be able to make a parody,” Mr. Harkins said. 

Warner Bros. is about to help us all with new case law and answer some burning questions like:  Can you copyright a tattoo?  Can you copyright a tattoo placed on another human being?  Can you use a copyrighted tattoo and claim "fair use?"

My money says that Warner Bros. settles out of court so that there is no ruling in this case.  It is just nice to know that Warner Bros. does recognize the concept of "fair use" and "parody"  and I will remind them of that next time I use one of their works in accordance with "fair use" and they send me a DMCA takedown notice.

It is nice to know that big movie studios like Warner Bros. actually understand copyright law and have no intention of stifling creativity.