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?
Along those lines, it seems like you could also make the case that it's clearly transformative, in that the original "expression" is the tattoo on Tyson's face. Moving that tattoo -- even if identical -- to Helms' face
significantly transforms the tattoo into saying something entirely different. Ignoring the fact that the tattoo goes hand in hand with whose face its on doesn't make any sense at all, and suggests a misreading of the intentions of the fair use setup.
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.