Is The Mike Tyson Tattoo On Ed Helms A Parody?
from the it-should-be dept
We just wrote about how the judge in the Hangover 2/Mike Tyson tattoo copyright case had said that she wouldn't block the release of the movie, but would let the lawsuit proceed and indicated that the tattoo artist would likely prevail. I thought she just meant on proving the initial infringement, but other reports are saying that pretty clearly mocked Warner Bros.' defenses, including fair use on the tattoo:Judge Perry briefly discussed the defense's claim of Fair Use, opining that there was no parody or transformative use, the entire tattoo in its original form was used (not in any parody form), the tattoo was not necessary to the basic plot of the movie, and that Warner Brothers used the tattoo substantially in its marketing of the movie.This seems problematic for a bunch of reasons, but one part that troubles me (and we had some of this discussion in our comments) is whether or not the tattoo is parody. Frankly, I can't see how it's not parody. The reason that people claim that it's not transformative or parody is that it's an identical copy and thus isn't parodying the original tattoo. But that seems entirely wrong. While it's the tattoo itself that's copyrighted, you have to look at the context of the tattoo -- and in this case that includes the fact that it's on Mike Tyson's face. Putting it on Ed Helms' character (in many ways the antithesis of Tyson's character) is a clear parody of Tyson and his tattoo. I have trouble seeing how you could argue otherwise. If the point of the tattoo on Helms' face wasn't to parody the same tattoo on Tyson's face, then what's the joke here?
Finally, I have trouble believing the argument that this would somehow negatively impact "the market" for S. Victor Whitmill's "work." Just what is that "market"? How many people want the same tattoo that's on Mike Tyson's face? If anything, it seems like the movie might (if only so slightly) increase the market, rather than diminish it.
The whole case seems like a joke, and the judge's initial comments seem really out of line with the basics of copyright law.
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Filed Under: copyright, ed helms, fair use, mike tyson, tattoo, victor whitmill
Companies: warner bros.
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There is no joke, they put the tattoo in the movie because it is so awesome that people will come from the four corners to see it and so they so they will sell tickets to their movie without having to spend all the effort to come up with a tattoo design on their own. The fact that it is also on Tyson's face and he happens to be in the film is just coincidental.
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How much more evidence does the judge need to know that copyright law allows this parody? A signed copy of the second movie for her kids?
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The artist is claiming infringement only on the unauthorized copy that's on Ed Helm's face.
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The first-sale doctrine doesn't apply to such copies, just the original physical copy that is sold.
So, skinning and gluing is fine, but once you film that skinned, glued tattoo, you're making a copy and you're outside the realm of the first sale doctrine.
However, his argument about an implied license is more plausible, though I think still not a winner.
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How does your explanation not imply that any artist can sue for any picture made of a piece of work.
where does the madness end!?!?!? think of the children!
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There may be some other reason why it is noninfringing.
Generally speaking, an artist has the right to prevent copies of their work (including pictures). There are, of course, exceptions.
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Can parts of an art work be copyrighted also
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I was going to say that
The tattoo is also clearly different. It looks like someone had a picture and a magic marker and a slight lack of skill. I've come to expect more from makeup artists in Hollywood.
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They are at different angles, though. Does anyone have larger photos which were both taken from the same angle? (I trust those two 97*102px pictures weren't the ones used in court as evidence!)
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Im sure they could do better but the tattoo you would get in Bangkok at 4 AM while blackout drunk probably isnt on caliber with the makeup artists doing their best. IOW, its shitty on purpose
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Of course I'm willing to bet that the actor only has a henna version of the not-even-close design, so in essence there is no copy of anything in reality - just a similar mark on someone else's face.
Please explain how someone might have a copyright on that?!
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Again, to reiterate the point, just because someone paid you to create some work, does NOT mean they own the copyright.
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I think there's a legitimate argument to be made that an addition to a pre-existing tattoo sleeve might be a contribution to a collective work, and therefore eligible to be considered a work made for hire, assuming there's a written agreement to that effect.
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parody
One argument against fair use parody is that the humor comes from the absurdity of Ed Helms with a tough guy tattoo, so the movie is using the tattoo in the same way Mike Tyson uses it; as a signifier of toughness.
However, I can see it going the other way as well; it mocks the tattoo for being a shallow signifier of badass-itude.
Of course if it were to negatively impact the market, it could do so my making the tattoo undesirable. Presumably by successfully mocking the tattoo as a laughable substitute for masculinity. In which case it would necessarily have to be a sucessful parody.
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because prior to this movie there was such a huge demand for face tattoos.
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I can see the followup suit claiming potential losses of profit due to "making ... (this particular tattoo) ... undesirable"! With the complete studies on exactly "how much" the tattoo artist lost in the US and in other markets! Would not miss for all the tea in China!
8^)
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It's not a tatoo
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Another reason it might be parody
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In a copyright sense, a "parody" must contain some element of criticism of the original work. Maybe there's an argument to be made for that, but simply repeating the conclusion that it's a "clear" parody, without even identifying what a "parody" is in copyright terms, is not very convincing.
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There must be a written agreement AND the work must fall into one of 9 statutorily identified categories to be a work made for hire (unless an employee does it for his employer).
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My point of view - let Hollywood have it! If you promote strong copyright laws then have courage to face consequences of strong copyright laws!
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Not ideal, but that's how it works right now.
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I know fair dealing here is more limited in many ways than the U.S. fair use, although I certainly wouldn't be able define the differences. Do you know of somewhere that spells out the differences in a nice concise way? I don't work well with abstracts like "It's much more limited". Especially since our rulings on the subject always seem to usually follow the U.S.'s lead.
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In that case, definately. Sue the movie. Whatever money the tattoo dude makes off it he has clearly earned from his own hard work. Unlike the rest of us bloody leeches who do nothing but take.
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parody
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The False Notion of Viable Parody Defenses
A starting primmer worth reading here:
http://www.againstmonopoly.org/index.php?perm=593056000000003426
There are other authorities which MIGHT suggest otherwise, but just how the holdings are to be applied in other contexts have proven to be as clear as mud:
http://www.law.cornell.edu/supct/html/92-1292.ZO.html
As Justice Souter (most regretfully) said in the link above: "[P]arody, like any other use, has to work its way through the relevant factors, and be judged case by case, in light of the ends of the copyright law."
"Case by case" with no clear answers is the key here - at least until you've spent thousands of dollars in court to have a judge tell you the answer (and then risk a liability judgment on top of that if you lose).
Keith pretty much had it right in his comment above - If it happens to make the presiding judge laugh, then its "parody". If not, then its copyright infringement.
Its all just further proof of what a disgrace the current copyright regime is - allowing judges to fashion themselves as art and literary critics, rather than the arbitrators of objective legal principles.
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It is not parody...
Second, you also misunderstand the "effect on the market" factor in a fair use defense. It is the copyright holders right to dictate the market for his own work. The fact that the movie may make his work more popular is not a defense, because only the copyright holder can decide when to display (and essentially market) his own work. Warner has no right to this for him. That would be akin to placing a film on bit torrent and arguing that having the film on a torrent site made the film popular and therefore increased it's sales. While it may be fact, it is not a legal defense, because there was not right to copy the movie to a torrent.
Warner Brothers will clearly lose the copyright claim in the lawsuit.
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Misunderstanding Copyright Law
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Or are you actually going to expand on how exactly there are false definitions lying around because you're incentivized to litigate through copyright law?
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He's not explaining how the comments are uninformed, makes a sweeping generalization of the community of Techdirt, then says nothing to explain his reasoning.
Looking at how he's in Real Estate, copyright law, and corporate law, I find it very poor form to come into a debate, merely to make a comment that's supposed to rile the people up. I would have preferred if he had debated directly with the person that had said "XYZ" rather than come in to say "I'm just glad the court, and not these comments, will govern the outcome of the dispute."
It seems to dismiss everyone involved in Techdirt, which raises my ire. Personally, if I have an issue with someone's way of discussion, I would take it up with that post. That's Rob's choice. But it seems to come from some moral high ground that Rob is not privy to. Sorry, I see him as just another poster. It would be far more beneficial if he had said what the exact problems with the case law were or helped people to understand fair use. Hell, I wouldn't have been critical if it seemed he knew something of the case law involved. But coming into _Any_ community, then dismissing the arguments wholesale is a quick way to lose any credibility for your logos and ethos with me.
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Nothing in his post dismisses everyone involved in the comments. If you feel that way, I think, as I stated earlier, you're just irrationally defensive when someone challenges "your side."
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It's similar to going to the bottom of this current forum saying "wow, this place sucks" then leaving it at that.
I've already explained about the "false definitions" needing further clarification of what exactly the point is. You can agree with him if you feel. The problem as I see it, is that a sweeping argument does not move the argument forward and makes him look poorer in the debate.
Then going on to tweet about how you can be misinformed through the comments of Techdirt, is even worse. Perhaps he doesn't see a lot of value in correcting trolls, but again, that's his choice. It helps to define the arguments and understand the exact issues involved with copyright. Great, he doesn't want to repeat the arguments here. Why in the world would you bring it up and come to talk and discuss the points without anything to point to? Why allow other posters to cite case law without affirming that it is correct or incorrect? Those are far better solutions than "being glad the court will decide", especially as the court appears to be getting it wrong.
So again, I'm not being defensive. The first statement continues to look like a poor choice in wording, adding to a poor tweet, that could have perhaps better been used in discussing the merits (or lack) of the arguments here than waiting for the courts to decide.
JMT's opinion coincides in a similar manner to what I'm discussing. The least I would ask of Rob is say more and clarify his position than what the first post does.
The second one below, explains a lot better than the first.
Finally this:
"you're just irrationally defensive when someone challenges "your side.""
Look, I'm against copyright because I've seen no evidence that says it actually helps people build, create, or inspire them to newer heights.
I've not seen copyright used in creating a song.
I've not seen copyright used in making a new game
I've not seen copyright create a new movie.
If anything, copyright is retroactive, hurting people financially for what they've done. Artists, inventors, tinkerers and innovators have all suffered because of copyright laws that prohibit what they can do.
After reading Joe Karaganis' book, "Media Piracy" and seeing that enforcement is futile, I see nothing but ill effects coming down the pipeline.
That's my view, based on the research. If someone coincides with that view, great. If not, we'll talk until I have more information that says that copyright is peaches and gravy. I'll wait and read all data, and keep a skeptical view on copyright, since the harms of enforcement far outweight the "benefits". That's my side in a nutshell.
As I've said before, I'm not being defensive in saying his first post was poor and lacking. There were a lot of things that could have been improved to get the message across.
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I myself like to correct such misinformation here, but I don't see why three different people need to say the same thing (e.g., just because you paid someone to do work doesn't make it a work made for hire!).
"Why in the world would you bring it up and come to talk and discuss the points without anything to point to?"
It's almost as if some commenters on Techdirt just want to get in a snarky comment without engaging in a serious debate! I'm sure you're just as vigilant with such snarky commenters when they agree with you, right!?
I think your first post shows defensiveness because of both this double standard and because of it's tone (not to mention hypocritical nature). How is calling someone a jackass contributing value?
On a side note, how exactly is the court getting it wrong? You seem to be willfully ignoring the ACTUAL POINTS BEING MADE ABOUT THE LAW in these comments.
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"On a side note, how exactly is the court getting it wrong? You seem to be willfully ignoring the ACTUAL POINTS BEING MADE ABOUT THE LAW in these comments."
Let's see, he owns a tattoo placed on a living man's head. He's stopping a parody expression and it needs to be litigated that this is fair use. Top that off with how Victor has made the Maori tribe angry when he didn't even ask them for permission. Somehow, the law being used to litigate and give money to a guy who has nothing to do with the movie being produced nor the parody tattoo being made seems wrong on so many levels...
"I think your first post shows defensiveness because of both this double standard and because of it's tone (not to mention hypocritical nature). How is calling someone a jackass contributing value?"
Taking the post's lack of substance along with the tweet, I came to the conclusion that he was doing a similar tactic to other "trolls" on the site, in trying to start up a conversation and being critical of others without specifics.
Perhaps my bias against most lawyers is prevalent, in that I thought Rob was automatically a copyright maximalist, and for that I apologize. Seeing as how FUDbuster is a law student, and Terry Hart's... analysis is mired in detail, I put Rob in the same category.
The lawyers that fight against copyright seem to be fewer and farther between than those that want to mire everything in law and writ.
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Not really. He owns the copyright in the tattoo. So?
"He's stopping a parody expression"
Have you read any of the comments regarding what is required to be considered a "parody" for purposes of copyright fair use? Are you just closing your eyes and screaming "la la la" when anyone writes something that contradicts Masnick's unsupported conclusions or your own preconceptions?
"and it needs to be litigated that this is fair use."
I'm not sure what you mean here. Yes, legal conclusions usually need to be litigated for a court to say they are right or wrong.
"Top that off with how Victor has made the Maori tribe angry when he didn't even ask them for permission."
How on earth is that relevant to the judge's legal determination?
All this may "seem wrong" to you, but that doesn't mean "the court appears to be getting it wrong."
"I don't like the law" is not the same as "the court isn't doing it's job right."
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Herein lies the problem. The tattoo is based on two separate issues. It's a Maori warrior tribal tattoo, and it's on display on a living being. So having a copyright on this expression means he's allowed to stop anyone from using a parody of it? It's why the Maori are upset by it. It's rather insulting to their culture.
"Have you read any of the comments regarding what is required to be considered a "parody" for purposes of copyright fair use? "
So it has to be declared a parody in court for it to be one?
Better yet, why is it that this tattoo can place an injunction on DVD sales among other distribution methods?
1)There seems to be no harm in this parody to his original.
2) The nature of the work is a crude marker from a drunken night of outright partying
3) The entire work may be used but it's on someone else's face and has been designed for a parody.
4) Most important, Helms' fake tattoo is not hurting the market for getting tattoos
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"I'm not sure what you mean here. Yes, legal conclusions usually need to be litigated for a court to say they are right or wrong. "
For what purpose does this need to be litigated? Damages from a copyright on a guy's face? Having a parody of Mike Tyson's tattoo? A permanent injunction on the sale of Hangover 2 because someone made a joke about the tattoo that Whitmill can't handle? In all honesty, it makes no sense why this is having to go to court in the first place. To have the judge say that the merits go to Whitmill in the first place, is troubling, because this does not pass the smell test.
It's akin to Righthaven bullying websites for quick settlements.
"How on earth is that relevant to the judge's legal determination?"
It's more about looking into what was discussed earlier (Sean T Henry) about this being a generic tattoo. It may become a work for hire, which may change everything involved.
This will raise a LOT of problems, however. If it's true that Whitmill owns the copyright on Tyson's tattoo, does this mean no one can add to it? Does it also mean Whitmill owns cuts of Tyson's proceeds? Does he own Tyson? The implications are far reaching in trying to block one expression that pretty much falls into fair use territory.
What I find incredibly ironic however, is how Mike Tyson, even though we're arguing about his tattoo, isn't a part of the conversation.
""I don't like the law" is not the same as "the court isn't doing it's job right.""
I'll fight bad laws that are used to stifle creativity, innovation, and collaboration in all forms. I don't agree with how the Supreme Court has butchered the 4th Amendment recently, by saving no expense on the War on Drugs.
Had the court done its job and looked into this case and thought about the common law on it (Moron in a hurry test, 4 questions, etc) she would have thrown this out as it's obvious this case has no merit.
I'm not a fan of Warner Bros entirely, but being punished for making a parody of a tattoo, with an injunction, doesn't seem reasonable in the slightest.
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It's depressing how little copyright law and common sense seem to overlap these days.
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Unfortunately, you get a lot of people here on Techdirt who know very little, or just a little more than that, making bold and unfounded pronouncements about what "clearly" is parody or "clearly" is fair use or some other dimestore legal analysis.
So sometimes the lawyers like to shine a little light on the subject and correct misconceptions. If you'd rather turn of the lights and let the blind continue leading the blind, that's too bad.
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What the lawyers are shining a light on, probably unintentionally, is how ridiculous it is that this debate is even taking place.
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But regardless of whether the laws should or should not be modified, misrepresenting what they *are* doesn't help anyone.
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Thanks, but no thanks.
Definitely not from someone with a twisted mindset like this.
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"Da Plane ... da plane !"
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I say not Identical
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Other tattoos
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I say not Identical
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Just ask the Maori
From the linked article:
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Rookie mistake
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If you copy 90% of the original, then it's a copy of 90% of the original.
It's an imperfect copy.
Regardless, not much relevance to the case, unless the slight differences in the Helms tattoo are eliminations of the only bits that were original to the Tyson tattoo.
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Work for hire?
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Mike Tyson's tattoo
Judges are human, and make human mistakes; hopefully a higher court will correct this situation.
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