Tyson got his
face tattoo from artist S. Victor Whitmill of
Las Vegas, Nevada, shortly before
Tyson's 2003 fight with
Clifford Etienne (which would be his 50th and last victory), having previously suggested that he would get a face tattoo if he won
Lennox Lewis vs. Mike Tyson. Tyson had originally wanted hearts (which he "just thought ... were cool"), but, according to Tyson, Whitmill refused and worked for a few days on a new design. Whitmill proposed a
tribal design inspired by , a
Māori tattoo style. The design is not based on any specific and was created directly on Tyson's face. Tyson saw the tattoo as representing the Māori, whom he described as a "warrior tribe", and approved of the design, which consists of monochrome spiral shapes above and below his left eye. According to Tyson, it was his idea to use two curved figures rather than one. The tattoo drew significant attention before the fight. Tyson took time off of training to get it, which trainer
Jeff Fenech would later say was a contributing factor to the fight being rescheduled by a week. Some questioned Tyson's physical and mental fitness to fight. Experts including dermatologist
Robert A. Weiss expressed concerns about Tyson boxing while the tattoo healed; Etienne said that he would not go after the tattoo. (Tyson ultimately
knocked out Etienne in under a minute.) The work—which Tyson and others have referred to as his "warrior tattoo"—was also met with criticism from the outset by Māori activists who saw it as
cultural appropriation. In 2006, artist Mark Kopua in a statement to the
Waitangi Tribunal called for "a law that would prevent a Mike Tyson or a
Robbie Williams or large non-Māori companies from wearing and exploiting the ". Rachael A. Carmen et al. in the
Review of General Psychology posit that Tyson's face tattoo may be an example of "body ornamentation as a form of intimidation". Charlie Connell and Edmund Sullivan in
Inked describe it as having become "instantly iconic", while
Vice Mitchell Sunderland ranks it as one of the two things Tyson is best known for, alongside
biting off part of Evander Holyfield's ear. Marie Hadley, in
A History of Intellectual Property in 50 Objects, writes that the tattoo "has been described as one of the most distinctive tattoos in North America". Its stature has increased over time, aided by
Tyson and the 2009 comedy
The Hangover, in which it is prominent on Tyson, who appears as a fictionalized version of himself. The tattoo has become strongly associated with Tyson and has made his persona more distinctive.
The Hangover Part II copyright suit When Tyson got the face tattoo, he agreed in writing that all drawings, artwork, and photographs of it belonged to Whitmill's Paradox-Studio of Dermagraphics, an uncommon step in the tattoo industry. In
The Hangover 2011 sequel,
The Hangover Part II, the character Stu Price (played by
Ed Helms) gets a face tattoo almost identical to Tyson's. After seeing a poster depicting the tattooed Stu, Whitmill
registered a copyright for the tattoo and then on April 28, 2011 filed
Whitmill v. Warner Bros. Entertainment Inc., seeking to
enjoin The Hangover distributor,
Warner Bros., from using the tattoo in the movie or its promotional materials. Describing the face tattoo as "one of the most distinctive tattoos in the nation", Whitmill did not challenge "Tyson's right to use or control his identity" but challenged Warner Bros.' use of the design itself, without having asked his permission or given him credit. Warner Bros. asserted about 16 defenses. They acknowledged that the tattoos were similar but denied that theirs was a copy. They further argued that "tattoos on the skin are not copyrightable". They reasoned that a human body is a
useful article under and thus not copyrightable. The question of a tattoo's copyrightability had never been determined by the
Supreme Court of the United States. Arguments
in the alternative included that Tyson, by allowing them to use his likeness and not objecting to the plot device in
The Hangover Part II, had given them an
implied license, and that their use of the tattoo constituted
fair use as
parody because it juxtaposed Tyson as "the epitome of male aggression" with the "
milquetoast" Price. Scholar
David Nimmer, participating an expert witness for Warner Bros., argued that treating tattoos as copyrightable would violate the
Thirteenth Amendment to the United States Constitution as a badge of slavery; Nimmer's declaration was then excluded because it was a legal opinion. On May 24, 2011, Judge
Catherine D. Perry denied Whitmill's request to enjoin the film's release, citing a potential $100 million in damages to Warner Bros. and disruption to related businesses. However, she found that Whitmill had "a strong likelihood of success" on his copyright claim and characterized most of Warner Bros.' arguments as "just silly", saying: Of course tattoos can be copyrighted. I don't think there is any reasonable dispute about that. They are not copyrighting Mr. Tyson's face, or restricting Mr. Tyson's use of his own face, as the defendant argues, or saying that someone who has a tattoo can't remove the tattoo or change it, but the tattoo itself and the design itself can be copyrighted, and I think it's entirely consistent with the copyright law. She also described the tattoo used in the movie as "an exact copy" rather than a parody. On June 6, Warner Bros. told the court that, in the event the dispute was not resolved, it would alter the appearance of the tattoo in the movie's home release. On June 20 it announced a settlement with Whitmill under undisclosed terms.
Impact and analysis While the outcome of the case was not
precedential, Perry's comments were the first time that a government official commented on the
copyrightability of tattoos. They were also significant in drawing a distinction between the tattoo's design and application. Despite the case settling, it prompted further discussion of the topic and speculation as to how the case might have proceeded if it had gone to trial. Timothy C. Bradley in
Entertainment & Sports Lawyer finds Warner Bros.' useful article argument meritless; in the
Cardozo Arts & Entertainment Law Journal, Craig P. Bloom similarly notes that Tyson's tattoo has no utilitarian function. Both stress that Tyson's face tattoo is conceptually separable from his body. Bradley concludes that tattoos are copyrightable and that Whitmill owns the copyright to Tyson's face tattoo. Bradley further argues, however, that Tyson has an implied license that mitigates a number of aspects of Whitmill's copyright. Yolanda M. King in the
Journal of Intellectual Property Law agrees that there was an implied license for Tyson to appear in various media and invokes
Roberta Rosenthal Kwall's proposal of a public display right for people with copyrighted tattoos. King is dismissive of Nimmer's Thirteenth Amendment argument in terms of tattoos' copyrightability, but agrees that it may have relevance to tattoo copyright enforcement. Bradley and King agree that any license to Tyson would not extend to Warner Bros. recreating the tattoo on another person's face, but Bradley concludes that Warner Bros.' actions were nonetheless likely fair use, while King argues that the replication of the tattoo on Price's face was satire rather than parody and thus not protected by fair use under
Campbell v. Acuff-Rose Music, Inc. Ultimately, Bradley writes that, even if a fair use defense failed, Whitmill would not have won significant
damages, as he had only registered the copyright after the alleged infringement began and could thus only collect on compensatory damages.
Māori response '' design belonging to
Tāme Iti Many Māori took issue with Whitmill suing for copyright infringement when the work was, in their view, appropriative of .
Ngahuia Te Awekotuku, an expert on Māori tattoos, told
The New Zealand Herald that "[i]t is astounding that a
Pākehā tattooist who inscribes an African American's flesh with what he considers to be a Māori design has the gall to claim ... that design as his intellectual property" and accused Whitmill of having "never consulted with Māori" and having "stole[n] the design". Bloom suggests that Te Awekotuku's argument could have formed the basis for a defense that the tattoo fell below the
threshold of originality. Some artists differed, seeing it not as appropriative of but rather a hybrid of several tattoo styles;
Rangi Kipa saw no Māori elements at all. The perspective of those like Te Awekotuku highlights the conflict between Māori conception of —which reflect a person's genealogy—as collective property and the
Anglo-American view of copyright as belonging to a single person. While Warner Bros. initially said they would investigate whether the tattoo was a derivative of any Māori works, there was no further discussion of the matter prior to the case settling. == Notes ==