As Warner Bros. prepares for the Memorial Day weekend release of “The Hangover Part II,” they are fighting a legal battle against a tattoo artist that could potentially prevent the film’s release.

Victor Whitmill is the tattoo artist behind Mike Tyson’s famous face tattoo. Whitmill created and applied the tattoo to Tyson in 2003, and is claiming ownership of the tattoo (the “Tyson tattoo”). Tyson starred in the first “Hangover” film, and in the upcoming sequel the character played by actor Ed Helms gets a similar face tattoo (the “Helms tattoo”). The Helms tattoo plays a central role in the film’s plot, and is featured prominently in both the movie trailer and poster. Whitmill recently sued Warner Bros. in federal court seeking both injunctive relief and monetary damages for the Helms tattoo.

This lawsuit raises some interesting questions as to who owns the copyright to the Tyson tattoo – the artist or the recipient. Under U.S. copyright laws, copyright protection extends to “pictorial, graphic, and sculptural works” that are fixed in a tangible medium. That is, the medium must be “sufficiently permanent or stable to permit it to be perceived, reproduced, or otherwise communicated for a period of more than transitory duration.” Tattoos are permanent, and the Tyson tattoo is a pictorial work, and it therefore appears that the Tyson tattoo is indeed protectable, giving the copyright owner the exclusive right to make copies and derivative works of the tattoo.

As to ownership, the default rule is that ownership extends to the artist unless there is an agreement to the contrary or the work in question is a “work for hire.” The “work for hire” designation only applies in a narrow set of circumstances, none of which appear to be applicable here. Thus, by default it seems that Whitmill would retain ownership rights to the tattoo. However, a tattoo is unlike other traditional art mediums. When applying a tattoo to an individual, and especially to a celebrity, the tattoo artist knows that the recipient will likely be photographed and/or videotaped – both of which involve copying the tattoo. Uses such as these are understood to be permissible, as it is not feasible for a tattoo artist to demand a royalty every time one of their customers is photographed. Thus, it seems there is an understood, implied license permitting tattoo recipients to publicly display their tattoos and to reproduce their tattoos in at least limited circumstances (e.g. photographs). In this case, however, the Helms tattoo would seem to be outside of this implied license, as Warner Bros. went beyond filming Tyson and copied the entire Tyson tattoo onto actor Ed Helms in Tyson’s absence.

Additionally, Whitmill alleges in his complaint that a tattoo release form signed by Tyson relinquished Tyson’s rights in the tattoo to Whitmill’s tattoo studio. The release form dealt primarily with safety concerns (e.g. statements that the recipient is 18 years of age, not pregnant, not under the influence of drugs or alcohol, etc.). However, the release also stated that “I understand that all artwork, sketches and drawings related to my tattoo and any photographs of my tattoo are property of Paradox-Studio of Dermagraphics.” With Tyson’s tattoo being featured on his face, just about any picture of Tyson is also a photograph of the tattoo to which Whitmill claims an ownership right under the release. Thus, given the implied license discussed above it appears that the scope of the release is not quite as broad as the release form suggests.

To rebut Whitmill’s allegations, Warner Bros. has alleged the affirmative defenses of both laches and fair use. The defense of laches posits that by failing to assert a claim in a timely manner that one should be barred from asserting that claim. Whitmill’s lack of objections to the prominent display of the Tyson tattoo in the first film “The Hangover” in 2009 and the 2008 documentary “Tyson” alone seem to lend credence to Whitmill having chosen not to assert rights granted to him by the tattoo release. The defense of fair use is used to justify limited copying without the owner’s permission, and uses constituting parody are often afforded considerable amounts of protection. In “The Hangover Part II” the copying of Tyson’s tattoo is clearly done for laughs, and Warner Bros. will no doubt argue that the comedic nature of the Helms tattoo is evidence of parody.

With hundreds of millions of dollars in box office receipts on the line, Warner Bros. has a strong incentive to settle this dispute in advance of the movie’s upcoming release date. Additionally, as the popularity of tattoos continues to increase, and with celebrities often obtaining increasingly visible tattoos, it is likely that these types of disputes will continue to arise.