Tyson Tattoo: Why The Hangover II is getting sued by Mike Tyson's tattoo artist

Tyson tattoo artist sues The Hangover II for copyright infringement on his Mike Tyson tattoo. Does the tattoo artist have a case?

After another wild night of debauchery in the Hangover II, actor Ed Helms as Stu Price wakes up with a not-so-subtle souvenir from the night before.

Tattooed on his face is the same Maori tribal swirls sported by Mike Tyson, who makes a cameo in both movies. Stu Price isn’t the only one upset by his new facial ink.

Tyson’s tattoo artist, S. Victor Whitmill, has filed a lawsuit against Warner Bros. Entertainment, Inc. to stop the movie’s release and gain compensation for copyright infringement. Whitmill may have a case against the studio, although Chief Judge Catherine D. Perry Tuesday denied the request for a preliminary injunction stopping the movie's release. The movie will debut Thursday, but the case will continue.

The complaint filed in the Federal District Court of Missouri includes the tattoo release form (click here to download a copy) that Tyson signed in 2003 stating that "all artwork, sketches and drawings related to my tattoo and any photographs of my tattoo are property of Paradox-Studio of Dermagraphics." Also included in the case legal filings is a copy of Whitmills copyright registration that went into effect April 19, 2011.

Whitmill's attorney argues that there are other potential violations of rights, including libel claims since the tattoo artist in the film is reported to be irresponsible and crazy. This representation, according to Whitmill's attorney could cause irreparable damage to Whitmill's reputation if the movie is released.

In spite of Whitmill's arguments, Warner Bros. has good legal reasons for assuming it has the right to recreate a facsimile of Tyson's tattoo on Ed Helms's face.

For example, as Warner Bros. stated in their response, the tattoo in The Hangover II could be seen as a parody of Tyson's own and therefore protected free speech under the First Amendment. Another part of the free speech argument is that the original tattoo – visible on such a prominent and renowned person as Mike Tyson – has already been disseminated through mainstream media.

The other argument, the use of the tattoo design in the movie, Hangover II, falls under the doctrine of fair use. According to the U.S. Copyright Office, there are four factors considered when determining fair use:

1. The purpose and character of the use, including whether such use is of commercial nature or is for nonprofit educational purposes.
2. The nature of the copyrighted work.
3. The amount and substantiality of the portion used in relation to the copyrighted work as a whole.
4. The effect of the use upon the potential market for, or value of, the copyrighted work.

A judge would assess each factor and determine whether the use of Mike Tyson's tattoo in the movie was indeed fair.

Most likely, the case will be settled out of court so Warner Bros. can release the movie – and Whitmill can score some money for his tattoo design.