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Ed Helms

He might be a bit past his prime, but angering Mike Tyson is still an incredibly bad idea, as the main characters of the 2009 hit movie The Hangover learned—repeatedly. But should movie stars like Ed Helms (pictured at left) quiver in fear because of Tyson’s tattoo artist? The tattooist is trying to block the launch of the sequel with a copyright lawsuit, saying that copying his design onto actor Helms’ face is actually a kind of tattoo piracy.

The lawsuit (embedded below) argues that the only authorized version of the tattoo is the one on Mike Tyson’s face, and that any other version is a pirated version. It asks the judge to issue an injunction stopping the movie from launching on schedule. The movie is currently slated to be shown in U.S. theaters beginning on Memorial Day weekend, according to The Hollywood Reporter, which first reported the suit.

Tattoo art is a interesting area of copyright. On the one hand, a tattoo artist should theoretically own the copyright to his work like any other artist. On the other hand, the work is so intimately tied to the place of its “publication”—it’s on another person’s body—that it seems crazy to give the artist, rather than the tattooed person, total control over how the artwork is displayed, photographed, and filmed. (Coincidentally, Techdirt featured two posts earlier this month ruminating on the peculiar position of tattoos in intellectual property law.)

Before getting the tattoo, Tyson signed a contract (included as an exhibit to the lawsuit) which states that “all artwork, sketches and drawings related to my tattoo and any photographs of my tattoo are property of Paradox-Studio of Dermagraphics.” Of course, if that clause is taken literally, it would seem to suggest that there’s no reason the artist couldn’t have sued over the first Hangover movie, and could demand royalties from Tyson for having his own face photographed. But the artist, award-winning tattooist S. Victor Whitmill, has chosen not to make that difficult argument here, suing over Ed Helms’ image instead.

Tyson himself presumably doesn’t have a problem with his tattoo being copied onto Helms’ face, since he will appear again in the sequel, according to the movie’s IMDB page.

Whitmill is asking for a preliminary injunction to stop the movie from launching. If that were to happen—and that’s a big stretch—Warner Brothers Entertainment would be under a lot of pressure to settle the case. Otherwise, I would hope the studio could win its case on the grounds that the Ed Helms tattoo is a parody and thus fair use. Just comparing Tyson’s tough-yet-completely-crazy glare to Helms’ quivering, fearful visage is a comedic experience in itself. In addition, anyone who wanted to impersonate Tyson effectively—think Saturday Night Live—would have to make a copy of the tattoo, so Whitmill’s lawsuit has serious First Amendment concerns, as well.

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