The face tattoo Ed Helms wakes up with in The Hangover Part II triggered a real copyright lawsuit: S. Victor Whitmill, the artist who designed and inked Mike Tyson’s face tattoo in 2003, sued Warner Bros. days before the sequel’s May 2011 release, claiming the studio had copied his design onto another actor without permission. The Hangover Mike Tyson tattoo lawsuit never reached a verdict. A federal judge signaled Whitmill would likely win on the merits, refused to block the movie anyway, and the parties settled a few weeks later on terms that were never made public.
Who Sued and What They Wanted
Whitmill filed his copyright infringement complaint in the U.S. District Court for the Eastern District of Missouri.1Justia. Whitmill v. Warner Bros. Entertainment Inc. He wanted a preliminary injunction that would have kept Warner Bros. from releasing the film in theaters. The complaint alleged that the studio recreated his tattoo on Ed Helms’s character without ever contacting him, seeking a license, or paying for the use. Whitmill had registered the design with the U.S. Copyright Office shortly before filing, under Registration No. VA 1-767-704, and he stated he had never before licensed the tattoo or reproduced it on anyone else.
The timing was the whole game. Warner Bros. had already spent tens of millions promoting the sequel and the release date was a few days out. An injunction would have pulled the film from thousands of theaters at the worst possible moment.
What the Judge Said About the Copyright Claim
Judge Catherine D. Perry gave Whitmill most of what he wanted on the law, if not on the remedy. She indicated he had a strong likelihood of succeeding on the merits of the copyright claim at trial. She was blunt about Warner Bros.’ fair use defense, reportedly calling it “silly.”
The studio’s fair use theory was that the film parodied Tyson, who appears in the sequel, and that putting his tattoo on Stu’s face was part of that parody. Perry didn’t buy it. The film reproduced the entire tattoo in its original form. It wasn’t commenting on the tattoo or mocking it; it was using it for the same visual purpose the design was originally created to serve, just on a different face. That’s about the weakest posture a fair use argument can be in.
Why the Film Still Opened on Time
Even with a strong likelihood of success, Whitmill lost the injunction fight. The court weighed the financial harm of yanking a summer tentpole against the harm Whitmill would suffer from the film opening, and concluded that money damages after the fact could compensate him adequately. The Hangover Part II opened on schedule in May 2011.
Warner Bros. also told the court it was prepared to digitally alter the tattoo on Helms’s face for the DVD and Blu-ray release, scheduled for December 2011, if the parties couldn’t resolve the dispute. That cut both ways. Whitmill risked having his design scrubbed from the home version, and the studio faced the cost and public embarrassment of editing a finished film.
How the Case Settled
The parties went to mediation and reached a settlement in June 2011. The case was dismissed with prejudice, with each side bearing its own costs and fees.2Justia. Whitmill v. Warner Bros. Entertainment Inc. The terms were confidential. The tattoo remained unchanged in the home video release, so whatever Whitmill received, it wasn’t a digital erasure.
Because the case ended in settlement, no court ever issued a final ruling on the underlying question of whether reproducing a tattoo in a film is copyright infringement. Perry’s assessment at the preliminary injunction stage is the closest thing to a decision on the merits, and it isn’t binding precedent.
Why a Tattoo Artist Could Sue in the First Place
Federal copyright law protects original works of authorship fixed in a tangible medium of expression.3Office of the Law Revision Counsel. 17 US Code 102 – Subject Matter of Copyright: In General A custom tattoo is a pictorial or graphic work, and the ink in skin is fixed enough to qualify. The statute covers media “now known or later developed,” and the court treated skin as qualifying here.
The wrinkle most people miss: paying for a tattoo doesn’t transfer the copyright. The client owns their body. The artist owns the design. Under copyright law, only a signed writing transfers ownership, and a commissioned custom tattoo doesn’t fit any of the narrow categories that qualify as “work made for hire.” So unless the artist signs the rights away, the exclusive right to reproduce the design stays with them.4Office of the Law Revision Counsel. 17 US Code 106 – Exclusive Rights in Copyrighted Works That’s why Whitmill, and not Tyson, had standing to sue.
The Implied License Loophole That Didn’t Save Warner Bros.
Whitmill’s complaint conceded something important: Tyson had an implied license to appear in public and in media displaying the tattoo. A tattoo artist who inks someone’s face necessarily expects that person to be photographed, filmed, and seen. Granting the wearer an implied license to display the tattoo as part of his own likeness is the only workable reading of the arrangement.
But that implied license belonged to Tyson, not to Warner Bros., and it covered display of the tattoo on Tyson, not reproduction of it on someone else. Tyson appearing in the sequel with his own tattoo was fine. The studio recreating the design on Helms was a separate act of copying that no one had authorized. That distinction is what made the case a copyright problem instead of a non-story.
What Whitmill Left Unresolved for Later Tattoo Cases
Because the case settled, later disputes have had to work out the harder questions on their own. Two are worth knowing about.
In Solid Oak Sketches v. 2K Games, a company that had acquired the copyrights in several NBA players’ tattoos sued the makers of NBA 2K for reproducing those tattoos on in-game player models. The court granted summary judgment to the developers on three independent grounds: the tattoos’ appearance in the game was de minimis, the artists had granted the players an implied license to display the tattoos as part of their likenesses, and the use qualified as fair use because the game used the tattoos to create recognizable player likenesses rather than for their original artistic purpose.5Justia. Solid Oak Sketches LLC v. Visual Concepts LLC et al
In Alexander v. Take-Two Interactive, tattoo artist Catherine Alexander sued over six tattoos she had inked on wrestler Randy Orton that were reproduced in WWE video games. A jury found in her favor and awarded $3,750. The court then vacated the damages, ruling that she hadn’t presented evidence to support the award; she had never licensed the tattoos for any medium, and her experts hadn’t analyzed how much of the games’ revenue was attributable to the tattoos.6CCH. Alexander v. Take-Two Interactive Software Inc.
The pattern that emerges across the three cases is fairly consistent. A prominent, faithful reproduction of a full tattoo, driving a scene the way Helms’s face drives the sequel, is a serious copyright exposure. A tattoo reduced to a few pixels on one of hundreds of characters in a sports game is not. And even when a jury finds infringement, an artist who hasn’t licensed the design before has trouble proving what the infringement actually cost. That is roughly the map the Whitmill case drew, without ever ruling on it.