No Infringement Intended: Can Tattoos Be Copyrighted? The Legal Battle Over Mike Tyson’s Iconic Ink

Think of the distinctive lightning bolt scar on Harry Potter’s forehead, or the iconic “S” on Superman’s chest – certain images are so ingrained in our consciousness, they become inseparable from the characters themselves. Tattoos, in today’s era, have achieved a similar cultural ubiquity, morphing from personal statements into globally recognized symbols on the bodies of athletes, musicians, and movie stars. From Dwayne “The Rock” Johnson’s elaborate Polynesian sleeve to Post Malone’s face covered in ink, these designs are often as famous as the individuals sporting them. But when a tattoo becomes a fixture in the pop culture landscape, who truly owns its image?

The legal landscape surrounding tattoo copyright is still being shaped, with recent court decisions adding layers to the debate. In a heavily watched case in Ohio, tattoo artist James Hayden sued LeBron James and 2K Games, arguing they needed his permission to feature his designs on LeBron’s avatar in their video game. But the jury disagreed, ruling that individuals with tattoos hold an “implied license” to showcase their body art as part of their own appearance. This decision for LeBron and 2K Games brings into question how much control an artist truly has over ink that’s become a permanent part of someone else’s identity and likeness.

Can a tattoo, something that permanently affixes to a person’s body, truly be protected by copyright law? We’ll attempt to answer this question by exploring Mike Tyson’s iconic face tattoo and its cameo in a major motion picture.

Back in ‘03

In 2003, Mike Tyson contacted a tattoo artist named S. Victor Whitmill. An expert known for tribal styles, Whitmill created a design inspired by the M?ori T? moko art style that seamlessly integrated with Tyson’s facial features, curving around his left eye and across his forehead.

Today, face tattoos are a familiar sight on major stars like Post Malone and Jelly Roll, but in 2003, Tyson’s bold choice was genuinely shocking, widely deemed unconventional, and a source of considerable public discussion.

Fast Forward a Few Years

Now, it’s 2009, and Todd Phillips’s movie The Hangover is in theaters. It was wildly successful, spurring two sequels. The movie stars Bradley Cooper, Ed Helms, and Zach Galifianakis. Today, we will focus on The Hangover Part II.

The sequel sees the same group travel to Thailand for Stu’s (Ed Helms) wedding. Despite Stu’s best efforts to keep things tame, the film quickly cuts from a pre-wedding brunch to the group waking up in a disheveled Bangkok hotel room. As their memories of the previous night are completely erased, they discover a shaved head, a missing brother, and most notably for our purposes, Stu (the straight-laced character) now has a replica of Mike Tyson’s iconic face tattoo.

This tattoo is an important plot device in the movie because it is impossible to hide from the bridal party, forcing the group to unravel the night’s chaotic events. Because of this, the tattoo was featured in the movie’s trailer and other promotional materials.

Whitmill Catches Wind

Since the film’s promotional materials featured Stu’s new facial art, it quickly caught the attention of S. Victor Whitmill, Mike Tyson’s tattoo artist.

In April 2011, roughly a month before The Hangover Part II’s late May release, Whitmill sued Warner Bros. for copyright infringement of his design. Whitmill immediately sought a preliminary injunction to stop the film’s release, which is a temporary court order issued early in litigation to prevent irreparable harm. He argued that the movie’s distribution would damage his reputation and the value of his artistic work. Warner Bros. highlighted the extreme financial and logistical burdens of delaying a major motion picture event like this sequel. The central question for the court became whether Whitmill was likely to win based on the merits of his copyright claim.

Let’s Talk About the Merits

As a copyright plaintiff, Whitmill needs to show two things. First, he needs to show that he owns a copyrighted work and that the defendant copied that work without permission. Luckily for him, he registered the “Tribal Tattoo” design in 2003, and the production company did not get his permission.

There is also a threshold to what can be copyrighted as well, which had to be considered in this case. The copyrighted work has to be original and fixed in a tangible medium. Don’t let the simplicity of a design fool you; even a few curvy lines around someone’s eye can qualify for copyright protection. The bar for originality in copyright law is surprisingly low. It doesn’t require something completely novel or groundbreaking. Instead, the creation simply needs to be your own and possess a modicum of creativity, which, as the name suggests, isn’t much at all. In fact, even certain phone directories have been found to meet this requirement in past legal cases.

The fixation in question here is the actual tattoo on Tyson’s face.

Warner Bros’ Hail Mary

As a next step in the case, Warner Bros brings in David Nimmer as an expert witness.

For those unfamiliar, Nimmer on Copyright is an undisputed, massive legal text on copyrights. It has several authors, but Melville Nimmer was the primary architect. His son, David Nimmer, took it over. This same David Nimmer appeared as an expert witness for Warner Bros. to testify on the copyright at issue.

It was an interesting choice because Nimmer, who is an authority on copyright law, had previously stated that tattoos likely are considered a fixation of a work. So, we’re back to this fixation requirement: is a tattoo on someone’s face a fixation for purposes of the Copyright Act?

As previously mentioned, he once thought that a tattoo could presumably be considered a fixation. After all, it’s not going anywhere.

However, Nimmer has since changed his mind and states “that live bodies do not qualify as a medium of expression sufficient to ground copyright protection.” There’s this concept in copyright law that you have to have a substrate, something to put the expression on, whether it be your computer hard drive, a piece of paper, parchment, or a stone tablet.

What if you write something in the sand at the beach and the tide is just going to come and sweep it away that night? What if it’s a frosted windowpane? Does that count? Is that a proper fixation of expression? Those things are probably not fixations. They’re not the type of substrate that lends itself to what we’re trying to do here and incentivize through copyright.

The Badge of Involuntary Servitude

But all that aside, the most interesting parts are where Nimmer warns about the implications if Whitmill actually did have a copyright on a tattoo. If Whitmill had the copyright, he would presumably have had a potential injunction over Tyson’s face.

“Copyright law thereby becomes the instrument to impose almost literally a badge of involuntary servitude akin to the mark with which ranchers brand the cattle they own.” This means Whitmill could have a claim to Tyson’s ability to change the design, because when you design something, you’re the owner, and people can’t make derivative works out of it.

Nimmer also argued that Whitmill could potentially have a claim against any media outlet that publishes a picture or video of Tyson’s face. Even with Whitmill’s acknowledgement that Tyson was given a “broad license” to the tattoo design, Nimmer’s point is that the court’s acknowledgment of ownership to the rights in a tattoo design means they’re not just this big involuntary servitude hypothetical. It creates a finding by the court to that effect, creating the potential for these kinds of human-being-specific issues. That’s why the skin, Nimmer argues, isn’t like a typical substrate (e.g., parchment paper) in that sense.

But that’s the essence of it: it’s a human-being-specific thing, that the skin is a different type of substrate. If we allow a copyright to happen here, we have particular issues that can arise because of copyright enforceability.

Warner Bros. also made arguments about their fair use, parody, satire, and First Amendment rights.

While the judge denied a preliminary injunction that would have halted the release of The Hangover Part II, the ruling wasn’t a definitive loss for Whitmill. The judge indicated that Whitmill was likely to succeed on the merits of his copyright infringement claim at trial, suggesting a belief that tattoos could actually be copyrightable. However, the immense financial and logistical burden on Warner Bros. of stopping the film’s release outweighed Whitmill’s immediate need.

Ultimately, the case settled out of court, preventing any legal precedent from being set from this case on the copyrightability of tattoos.  For the purposes of this discussion, the court seemed to lean towards tattoos being copyrightable, but the case never reached a full trial.

While The Hangover Part II escaped delay, the case left Hollywood, athletes, and tattoo artists with no clear roadmap. As tattoos become more culturally embedded, and more commercially visible, the legal system is still catching up.