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Can a tattoo be copyrighted?

That was the question put to U.S. District Court Judge Catherine D. Perry by plaintiff tattoo artist S. Victor Whitmill, the person who created the tattoo adorning former boxer Mike Tyson’s face. When the “Tyson tattoo” was worn by actor Ed Helms in the film The Hangover: Part II, Mr. Whitmil sued for copyright infringement. In its answer, Warner Bros. stated that tattoos (or any other artwork on the human body) are not copyrightable. Although there is limited case law on human body artwork, the Copyright Act merely requires that the work be fixed in a tangible form. Putting ink to skin is analogous to putting it to paper, so the argument would seem to lack merit.

The other defense raised by Warner Brothers is more substantive. Warner Bros. also stated that the usage of the Tyson tattoo on the character’s face was a form of parody protected under the Fair Use Docrine. The character was portrayed in the film as being cowardly / weak. There is humor in portraying him with Mike Tyson’s face tattoo.  But humor is not the same as parody.

In any case, the matter has since be settled, as reported here.