Mike Tyson’s face was recently all over the news again, but this time under somewhat different circumstances. Victor Whitmill, the tattoo artist responsible for Tyson’s iconic tribal facial tattoo, took heavyweight production house, Warner Bros to court in April 2011 alleging that his copyright in Tyson’s face tattoo had been infringed by the tattoo’s inclusion in the film The Hangover Part II, where it appears on actor Ed Helms’s face.
Whitmill applied for an interim interdict to stop the release of the film and although the judge was quick to reject Whitmill’s application she seemed willing to entertain his alternative claim for damages weighing in at a hefty $30 million, which was scheduled to be heard in February 2012.
Warner Bros indicated that it planned to digitally alter the tattoo for the home video version of the film if the case didn’t settle quickly pending the Hearing. However, during the end of June 2011 the parties agreed to settle the matter for an undisclosed amount.
Copyright in a Tattoo
In South Africa, a tattoo could qualify as an ‘artistic work’ eligible for copyright protection in terms of the Copyright Act 98 of 1978 (the Act). The fact that a tattoo is applied to a human body does not affect the copyright vested therein, which is similar to that vested in a logo, webpage design or architect’s drawings.
As a general rule, ownership of the copyright in an artistic work vests with the author thereof, but there are a number of exceptions. Where a person commissions the taking of a photograph, the making of a cinematograph film, the painting or drawing of a portrait, the making of a gravure or the making of a sound recording, and pays or agrees to pay for it in money or money’s worth, ownership of the copyright in any work arising out of the pursuance of that commission will vest with the commissioner.
A tattoo does not, however, fall within the scope of this exception and the ownership of the copyright will, in the absence of an agreement, vest in the author.
Accordingly, in the absence of such an agreement, the author of the tattoo would be the owner. The author would be the person responsible for the creation of the material embodiment of the tattoo. It is important to note that the author does not necessarily have to be the originator of the idea behind the artistic work but must simply apply sufficient independent intellectual effort or skill in embodying the idea. A tattoo artist creating an artistic work on his client’s skin (the material embodiment of the work) will therefore be the author of the artistic work, and in this case, the owner of the copyright.
There are only two instances in which the tattoo artist will not be the copyright owner: Firstly, where the tattoo artist is employed by a tattoo parlour, the parlour will own the copyright in the tattoo; and, secondly, where the tattoo artist/parlour and client enter into a separate contract whereby the copyright is assigned to the client.
Protection of copyright
A number of exclusive rights vest in the owner of a copyright in an artistic work to do or to authorise the doing of a number of acts, including the exclusive right to include an artistic work or reproduction or adaptation thereof in a cinematograph film or television broadcast. Any person, not being the owner of the copyright, who, without the licence of the owner, does or causes any other person to do any act, which the owner of the copyright has the exclusive right to do or to authorise, infringes copyright.
Accordingly, under South African copyright law, a person who includes an artistic work or a reproduction or adaptation thereof in a film, without the necessary licence of the owner, could be guilty of an offence.
The owner of an artistic work is entitled to apply for an interdict to stop the infringement or claim damages caused as a result of such infringement.
Alternatively, the owner can claim an amount calculated on the basis of a reasonable royalty which would have been payable by a licensee in respect of the artistic work concerned.
In terms of South African law, a tattoo artist would be able to apply for an interdict preventing one of his tattoos or a reproduction or adaption thereof from being included in a film or television broadcast without his permission and/or claim damages or a reasonable royalty as a result of the infringement.
Regardt Botes is Senior Associate and John Foster a Candidate Attorney in the Intellectual Property practice of Cliffe Dekker Hofmeyr.