Welcome to #IPThursday with your Favourite Lawyer. If you have a tattoo or thinking of getting one, then this thread is for you. (I rhyme!). It concerns the legal issues behind Mike Tyson’s face tattoo. The big question today is, who should own the copyright in a tattoo?

The star of our show today is none other than “Iron” Mike Tyson. Born on the 30th of June 1966, Tyson is considered one of the greatest boxers of all time.

Tyson rose to fame in the 1980s by becoming the youngest boxer to hold a heavyweight title, winning his first one in 1985 at just 20 years of age. Most of Tyson’s wins were by knockout which was incredible and naturally, he was compared to the great Muhammad Ali.

Although Tyson and Ali were boyh successful in the ring they couldn’t be more different in their similarities. Ali was famous for being a tactical boxer, Tyson used strength and brute force to knock out opponents.

Whilst Ali is seen as a cultural figure in the fight for civil rights, Tyson was seen as a maverick who frequented Las Vegas, had a violent history, did drugs and kept a pet Tiger. Yes, Mike Tyson is the original Tiger King.

Whilst Ali was arrested for protesting and refusing to go to war, Tyson was arrested in 1991 for rape and is a registered sex offender.He was initially convicted and sentenced to 6 years, he was released in 1996. But his rep as a true “bad man” was cemented.

He was released in 1996 and immediately started fighting again. He won many matches with ease until he fought Evander Holyfield in 1996 and got a beating. Holyfield was much older at the time and had retired a few years prior. He came out of retirement to beat Tyson.

Like most boxers, Tyson wanted a rematch and Holyfield gave it to him, why wouldn’t he? Mike Tyson was the most famous boxer in the world and fighting just meant more money....but Holyfield wasnt ready for what Tyson had in store for him.

We all know what happened in their second fight, if you don’t then where have you been the last 23 years?! During the fight, Tyson bit off Holyfield’s ear and lost the match by disqualification. Its probably one of the most shocking sporting moments of all time.

After the fight, Tyson was labelled all sorts of names. The press called him a disgrace, a cheat and more importantly for him, they dared call Iron Mike Tyson WEAK. Imagine, a man nicknamed “Iron” being called weak.

Anyways, after losing to Holyfield, Tyson took another beating from Lennox Lewis in 2003 and the press started calling him “weak” again. This really hurt Mike’s self esteem, so he decided to do the one thing any man would do to restore his street cred get a tattoo....on his face.

In 2003, Tyson approached tatttoo artist Victor Whitmill to get a tattoo that would make him look like the “baddest in the business again”. He chose one similar to the ones of the Māori tribe, a warrior-like group in New Zealand.

The intention was to bring back the edgy image that earned him the nickname “Iron Mike”. The two big defeats really hurt his ego. He wasnt feared anymore.

Whitmill got to work and drew the tattoo. Brave man is you ask me, imagine getting it wrong and messing up Tyson’s face?

The tattoo did bring back the edge, but not in the ring. Tyson spent his money recklessly and went broke, it didn’t help that he continued taking beatings in the ring until his retirement in 2006.

Throughout his boxing career, Tyson was often in the headlines for his many wild nights in Vegas, which he often wouldn’t remember. This leads us to the IP issues in our story.

In 2009, Jon Lucas and Scott Moore wanted to tell a story of a guy who gets really drunk at his bachelor party and goss missing. It was based on a true story they turned into a script. They sold the script to Warner Bros and they started making a movie based on it.

The movie was called “The Hangover”.

One of the directors remembered reading about Mike Tyson’s wild nights in Vegas. So they decided to cast him and a tiger in the movie. I mean, if you’re gonna have Tyson in a movie, then surely you must have a tiger too.

Although Tyson was high on cocaine most of the time, they filmed the movie and it was a huge success. So, they quickly decided to make a sequel, The Hangover 2.

The sequel featured one of the lead characters Stuart, played by Ed Helms getting a tattoo on his face like Mike. Helms’ face featured heavily in the marketing of the film. Him getting a face tattoo like Tyson was seen as a major pull factor for the movie.

The use of the tattoo would indicate things going out of control in the movie. However, just before its release, Tyson’s tattoo artist Victor Whitmill filed a lawsuit against the production company, Warner Bros.

Whitmill said the use of the tattoo in the movie was a form of copyright infringement. He wanted the judge to stop the movie from being released altogether. This was a big issue for Warner Bros, as filming was complete and they had already spent millions on marketing worldwide.

So Warner Bros decided to fight Whitmill. They started by saying that delaying the release of the movie would lead to a lot of financial losses for them. Which wasn’t really a strong defence against the allegations.

So they made a more serious argument, which led to a lot of debate for IP lawyers.

Warner Bros argued that a permanent tattoo is part of a human’s body and no other person should be able to control it. They thought because they had Tyson’s permission, that was enough.

The judge said the movie could be released, only because a lot of cinemas had already sold tickets and bought the rights to show it. However, the case for copyright infringement should go to trial. If Warner Bros lost at trial, they would not be able to distribute it.

Whitmill submitted proof that he actually registered the tattoo with the US Copyright Office. He had a copyright release form signed by Tyson that stated that he is to own copyright in the artwork.

Warner Bros said that copyright in artwork, cannot and should not extend to artwork permanently inked on someone else’s body. This would give the other person indirect control over the person who has the tattoo. Which isn’t right.

They also said that even if Whitmill owned copyright in the tattoo, Warner Bros had a legal right to use it in The Hangover II under a rule known as the “fair use rule”.

Fair use is a defence you can bring when someone accuses you of copyright infringement. It allows for limited use of copyrighted works without first obtaining permission from the owner.

You can only claim Fair Use in a few instances, these include education, reporting for news or parody/trolling. It’s a US law principle and SA is also adopting it in the new Act. Yes the media I use here qualifies as Fair Use under errrrr education or.....is it trolling?

Warner Bros. argued that the tattoo on Helm’s face in The Hangover 2 was used to parody Tyson, who makes a personal appearance in the film. As such, they claimed it qualified as fair use.

There are requirements that must be met for fair use to apply. 1. if the use is educational, it must be for a nonprofit purpose. 2. the portion of the copyrighted work cant be the whole thing, only a part. 3. the effect of the use. If its just for laughs then all good.

The judge said that Warner Bros’ fair use defence was silly as there was no trolling of Tyson in the movie. They were in the business of making comedy for profit and fair use would not apply.

When the judge said this, Warner Bros knew they would lose the case. The judge was clearly of the view that copyright in a work does indeed extend to tattoos on someone else’s body.

The only time it would be a problem, would be if Whitmill tried to restrict Tyson from showing his face anywhere or profit whenever Tyson showed his face in public. Or if he tried to profit off Tyson’s own image rights. That would be an issue.

Because the tattoo appeared on someone else’s face, this was copyright infringement. So they decided to settle with Victor Whitmill. I don’t know the details of the settlement but I’m sure it was millions.

The Hangover II was released in 2011 and it went on to make a lot of money. This was a difficult case because for copyright in a work to be valid it must be a) Original and b) Expressed in Material Form (written down on something, usually on a paper).

The question I would ask is, should the human body qualify as a Material inwhich a copyright work can exist. It does sound a bit weird. Did Warner Bros use the tattoo because it was a cool tattoo. Or did they use ut because they were trolling Tyson.

Sidenote: A lot of you guys download cool art on the internet and get that done on you as a tattoo. Odds are the rights to that artwork belong to someone else. I wonder what would happen if the owners of the copyright in those images sued you.

Could they get it removed? Would they issue you with a take down notice? Or would you have to just pay royalties? I reckon you’d pay somehow but I’d like to hear your thoughts!

Tyson himself has a tattoo of Che Guevara on his body. Copyright in that image belongs to the late Alberto Korda and the royalties are managed by his daughter, rememberer him from the Che Guevara thread? Can she sue Tyson for royalties?

Big Lesson: Warner Bros risked sabotaging the release of The Hangover 2 because they didn’t consider that someone else can own the copyright in a tattoo. Make sure you know who owns the rights to your tattoo before you get one. Things could get messy at a later stage!