I will focus on three main issues – (i) copyrightability of the tattoo, (ii) originality in the design and (iii) parody as a fair use defence.
Tattoos as a subject matter of copyright
One of the Judge’s remarks were that “the tattoo itself and the design itself can be copyrighted, and I think it’s entirely consistent with the copyright law.” This is important since it declares that tattoo designs can be the subject matter of copyright protection. One must keep in mind that this is not the first time that a tattoo designer has sought to gain damages on grounds of copyright infringement for a tattoo design. A few years earlier, there was a case of an NBA player being sued by the tattoo artist for ‘displaying’ his tattoo in a Nike ad. Again, this case, like most others, was settled out of court, so there is still no clear judicial pronouncement on this point. Probing a little further we find that noted copyright commentator, David Nimmer believes that the “body, even as augmented, simply is not subject to copyright protection.” Thus, according to him, a tattoo on human flesh, could not be the subject matter of protection. Nimmer was barred from disposing before the court as an expert witness on the plea of the plaintiff’s counsel that he was merely stating what the copyright law position ought to be and hence did not constitute expert evidence. While there may be several infirmities in Nimmer’s arguments, I find it to be an interesting stance since the medium of expression is particularly important in determining copyrightablity, and the medium of expression in this case being the human body, there is certainly scope for further legal treatment on this point.
Originality in the design
Another point that has been raised in subsequent debates on this point is the fact that the design itself is a replication of previously created Maori designs. There have been accusations that the plaintiff stole the design from previous Maori artwork and hence his claim over the design itself is dubious. However, I am not entirely convinced about this. This again brings to the forefront the idea-expression dichotomy and I reckon that the plaintiff’s design is an expression of the overall idea that may have been borrowed from the Maori tribe’s earlier designs. If that is the case, then there is no doubt that the plaintiff has the right to claim intellectual property ownership over his design, notwithstanding the fact that his design closely resembles that design forms of the indigenous Maori culture.
Parody as a fair use defence
The other possible argument for the defendants is that the tattoo replication on Ed Helm’s face was a parody and was intended to be so. However, Judge Perry commented on this aspect as well, and in dismissing this argument outright stated that “this was an exact copy. It’s not a parody.” However, I believe that this contention deserves a closer examination. Of course, merely depicting Tyson’s tattoo in a comedy film would not amount to a parody in itself, but there is certainly scope to argue that it amounts to a parody if there is a subtle indication or commentary on the original piece of art, with comedic effect. Just as a song that humorously comments on the voice or mannerisms of the original artist would constitute a parody, I think it is open to the defendants to make a similar claim in this case. For example, I would consider a commentary on the mere absurdity of getting a tattoo on one’s face as parodying the original piece of art. If the film, by means of dialogue or plotline mocks the very fact that Tyson has this particular tattoo, surely it should amount to a parody.
It is quite sad that we still don’t have a judicial pronouncement on this point, and till we do have one, we will have to go by Judge Perry’s remarks on the case to glean some understanding on the case at hand.