The American former boxer Mike Tyson has four tattoos of note.[lower-alpha 1] Three—at least two of them prison tattoos[lower-alpha 2]—are portraits of men he respects: tennis player Arthur Ashe, Marxist revolutionary Che Guevara, and Chinese communist leader Mao Zedong. The fourth, a face tattoo influenced by the Māori style tā moko, was designed and inked by S. Victor Whitmill in 2003. Tyson associates it with the Māori being warriors and has called it his "warrior tattoo", a name that has also been used in the news media.

Tyson's face tattoo quickly proved iconic and has become strongly associated with him. Its Māori influence has been controversial, spurring claims of cultural appropriation. In 2011, Whitmill filed a copyright suit against Warner Bros. for using the design on the character Stu Price in The Hangover Part II. Warner Bros. responded with a number of defenses, including that tattoos are not copyrightable; supporting them, scholar David Nimmer argued that it violated the Thirteenth Amendment to the United States Constitution—which prohibits slavery—to give Whitmill copyright over part of Tyson's body.[7] After initial comments by Judge Catherine D. Perry denying an injunction but affirming that tattoos are copyrightable, Whitmill and Warner Bros. settled for undisclosed terms, without disruption to the release of the film.

The legal action renewed claims of cultural appropriation but also saw some Māori tā moko artists defend Whitmill. Legal scholars have highlighted how the case juxtaposes Maōri and Anglo-American attitudes on ownership of images. Despite never making it to trial, the case has been widely discussed in the context of the copyrightability of tattoos, a matter which has never been fully resolved in the United States.

Portraits of Ashe, Guevara, and Mao

Tyson's tattoo of Che Guevara is derived from the photograph Guerrillero Heroico by Alberto Korda.
image icon Ashe and Guevara tattoos[8]
image icon Mao tattoo[8]

From 1992 to 1995, while in prison for the rape of Desiree Washington, Tyson read a large number of books, including works by Chinese communist leader Mao Zedong.[9] Spike Lee sent Tyson a copy of tennis player Arthur Ashe's deathbed memoir, Days of Grace. Tyson was moved by the book and respected Ashe's ability to be nonconfrontational[10] and admired his political views and his success as a black athlete in a white-dominated world.[11] Tyson got prison tattoos of both men on his biceps: A portrait of Mao, captioned with "Mao" in all-caps, on the left; a portrait of Ashe beneath the words "Days of Grace" on the right.[12] Gerald Early views the Mao and Ashe tattoos as together "symboliz[ing] both [Tyson's] newfound self-control and his revision of black cool", with Mao representing strength and authority.[13] Clifton Brown in The New York Times describes the Ashe tattoo as "a contradiction" with Tyson's "fits of rage".[14] Early and biographer Richard Hoffer cast the two bicep tattoos as an unusual combination of, in Hoffer's words, "alternate icons".[15]

Tyson chose tattoos of Mao and Marxist revolutionary Che Guevara to reflect his anger at society and the government while in prison.[lower-alpha 2] The Guevara tattoo, located on the left side of Tyson's abdomen, is derived from Alberto Korda's iconic Guerrillero Heroico photograph.[16] In the 2008 documentary Tyson, Tyson brags that the tattoo predated the widespread commodification of Guevara's image.[3] Tyson maintained positive views of both revolutionaries subsequently: In 1999 he described Guevara as "Someone who had so much but sacrificed it all for the benefit of other people."[17] In 2006 he visited the Chairman Mao Memorial Hall and said that he "felt really insignificant" in the presence of Mao's body.[18]

Face tattoo

Tyson's face tattoo, photographed in 2013
image icon Whitmill tattooing Tyson
image icon Tyson looking in the mirror

Tyson got his face tattoo from artist S. Victor Whitmill[lower-alpha 3] of Las Vegas, Nevada, shortly before Tyson's 2003 fight with Clifford Etienne (which would be his 50th and last victory),[20] having previously suggested that he would get a face tattoo if he won Lennox Lewis vs. Mike Tyson.[21] Tyson had originally wanted hearts (which he "just thought ... were cool"[22]), but, according to Tyson, Whitmill refused and worked for a few days on a new design.[23] Whitmill proposed a tribal design[24] inspired by tā moko,[lower-alpha 4] a Māori tattoo style.[25] The design is not based on any specific moko[26] and was created directly on Tyson's face.[27] Tyson saw the tattoo as representing the Māori, whom he described as a "warrior tribe", and approved of the design,[28] which consists of monochrome spiral shapes above and below his left eye.[29] According to Tyson, it was his idea to use two curved figures rather than one.[30]

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.[31] Some questioned Tyson's physical and mental fitness to fight.[32] 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.[33] (Tyson ultimately knocked out Etienne in under a minute.[34]) The work—which Tyson[35] and others[36] have referred to as his "warrior tattoo"—was also met with criticism from the outset by Māori activists who saw it as cultural appropriation.[29] In 2006, tā moko 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 moko".[37]

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".[38] Charlie Connell and Edmund Sullivan in Inked describe it as having become "instantly iconic",[34] while Vice's Mitchell Sunderland ranks it as one of the two things Tyson is best known for, alongside biting off part of Evander Holyfield's ear.[22] 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".[29] 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.[39] The tattoo has become strongly associated with Tyson and has made his persona more distinctive.[38]

Whitmill v. Warner Bros. Entertainment Inc.
CourtEastern District of Missouri
Full case nameS. Victor Whitmill v. Warner Bros. Entertainment Inc.
DecidedJune 22, 2011 (dismissed)
Citation(s)4:2011cv00752
Court membership
Judge(s) sittingCatherine D. Perry

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.[40] In The Hangover's 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[41] and then on April 28, 2011 filed Whitmill v. Warner Bros. Entertainment Inc., seeking to enjoin The Hangover's distributor, Warner Bros., from using the tattoo in the movie or its promotional materials.[42] Describing the face tattoo as "one of the most distinctive tattoos in the nation",[43] Whitmill did not challenge "Tyson's right to use or control his identity"[44] but challenged Warner Bros.' use of the design itself, without having asked his permission or given him credit.[42]

Warner Bros. asserted about 16 defenses.[45] 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".[46] They reasoned that a human body is a useful article under 17 U.S.C. § 101 and thus not copyrightable.[47] The question of a tattoo's copyrightability had never been determined by the Supreme Court of the United States.[48] 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,[49] 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.[50] 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;[51] Nimmer's declaration was then excluded because it was a legal opinion.[52]

Perry's comments; settlement


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:[53]

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.[49] 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.[54] On June 20 it announced a settlement with Whitmill under undisclosed terms.[55]

Impact and analysis

While the outcome of the case was not precedential,[56] 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.[57] 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.[58]

Timothy C. Bradley in Entertainment & Sports Lawyer finds Warner Bros.' useful article argument meritless;[47] in the Cardozo Arts & Entertainment Law Journal, Craig P. Bloom similarly notes that Tyson's tattoo has no utilitarian function.[59] Both stress that Tyson's face tattoo is conceptually separable from his body.[60] Bradley concludes that tattoos are copyrightable and that Whitmill owns the copyright to Tyson's face tattoo.[61] Bradley further argues, however, that Tyson has an implied license that mitigates a number of aspects of Whitmill's copyright.[62] Yolanda M. King in the Journal of Intellectual Property Law agrees that there was an implied license for Tyson to appear in various media[63] and invokes Roberta Rosenthal Kwall's proposal of a public display right for people with copyrighted tattoos.[64] 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.[65]

Bradley and King agree that any license to Tyson would not extend to Warner Bros. recreating the tattoo on another person's face,[66] but Bradley concludes that Warner Bros.' actions were nonetheless likely fair use,[67] 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.[68] 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.[67]

Māori response

Many Māori took issue with Whitmill suing for copyright infringement when the work was, in their view, appropriative of moko. 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"[69] and accused Whitmill of having "never consulted with Māori" and having "stole[n] the design".[70] Bloom suggests that Te Awekotuku's argument could have formed the basis for a defense that the tattoo fell below the threshold of originality.[71]

Some tā moko artists differed, seeing it not as appropriative of moko but rather a hybrid of several tattoo styles; Rangi Kipa saw no Māori elements at all.[72] The perspective of those like Te Awekotuku highlights the conflict between Māori conception of moko—which reflect a person's genealogy—as collective property and the Anglo-American view of copyright as belonging to a single person.[73] 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.[26]

Notes

  1. ↑ Tyson also has a tattoo of a tiger on his right forearm and a portrait of his ex-wife Monica Turner on his left.[1] The Los Angeles Times in May 1997 described both as new at that time; however, the Turner tattoo dates to August 1995 at the latest.[2]
  2. 1 2 In Tyson, Tyson says, "When I was in prison, I was so angry at society. I put a tattoo of Mao on me. I put a tattoo of Che on me. Because I just had no faith in our government."[3] In A Savage Business (1998), Tyson's biographer Richard Hoffer affirms that the Mao tattoo (as well as the Ashe tattoo, not mentioned in Tyson) was inked in prison, but makes no mention of the Guevara tattoo.[4] A January 1999 Associated Press article describes the Guevara tattoo as new at that time, but says the same about the tiger tattoo,[5] which was inked no later than May 1997.[6]
  3. ↑ Tyson often refers to Whitmill as "Victor Paradox" or similar.[19]
  4. ↑ Tā moko is the style of tattoo; the individual tattoos are called moko (both singular and plural).

References

Citations

  1. ↑ Inked 2020; Kawakami 1997.
  2. ↑ Gildea 1995.
  3. 1 2 Toback 2008, 58:51.
  4. ↑ Hoffer 1998, p. 13.
  5. ↑ Schuyler 1999.
  6. ↑ Kawakami 1997.
  7. ↑ Nimmer 2011, ¶¶ 16, 20.
  8. 1 2 Roche 2020.
  9. ↑
    • Hoffer 1998, p. 36. "Of his prison belongings, the only things that returned home to Ohio with him were more than 20 banana boxes full of books—Voltaire, Maya Angelou, Machiavelli, Alexandre Dumas."
    • Cashmore 2005, pp. 91, 242. "[A] newfound appetite for reading literature. Diverse literature too: from the works of Tolstoy to that of Mao Zedong, the latter the inspiration for a new tattoo" (p. 91).
  10. ↑ Connell & Sullivan 2022, quoting Tyson: "'I flew through it, then read it again. I felt a kinship to [Ashe]. He was very intelligent and he held back that intelligence, he was just nonconfrontational. I respect that. I wish I could be nonconfrontational but it just wasn't meant to be. I felt a kinship there, so I put a tattoo there.'" Brackets original.
  11. ↑ Early 1996, p. 59. Early says that Ashe was, according to Tyson, "not a man [Tyson] would have liked personally".
  12. ↑ Hoffer 1998, pp. 13, 36, 266; Roche 2020.
  13. ↑ Early 1996, p. 59.
  14. ↑ Brown 2005.
  15. ↑ Early 1996, p. 59; Hoffer 1998, pp. 36, 266.
  16. ↑ Cambre 2012, p. 84.
  17. ↑ Williams 1999.
  18. ↑ Chicago Tribune 2006.
  19. ↑ Reuters 2003, 2:37; Toback 2008, 59:32; Bensinger 2016, 0:22.
  20. ↑ Toback 2008; Inked 2020; Connell & Sullivan 2022.
  21. ↑ Wellington 2003, citing Saraceno 2002. From the latter: "'If I win the title, I might tattoo my face', [Tyson] said. / I think he was joking, but I'm not sure."
  22. 1 2 Sunderland 2013.
  23. ↑ Bensinger 2016; Connell & Sullivan 2022.
  24. ↑ Zhitny, Iftekhar & Sombilon 2021, p. 79.
  25. ↑ Hadley 2019, p. 401. "In Māori culture, facial moko is a privilege reserved for respected cultural insiders, and it represents and embodies the wearer's sacred genealogy and social status."
  26. 1 2 Hadley 2019, p. 402.
  27. ↑ King 2013, p. 140.
  28. ↑ Toback 2008, 59:46; Tan 2013, p. 64.
  29. 1 2 3 Hadley 2019, p. 401.
  30. ↑ Bensinger 2016, 0:52.
  31. ↑ AP 2003. Hamdani 2020, quoting Fenech: "'We sat down and spoke and he didn't really want to fight and he wasn't prepared to and that was one of the reasons he got the tattoo. ...'"
  32. ↑ Rafael 2003; Wellington 2003.
  33. ↑ Glier 2003a; Glier 2003b.
  34. 1 2 Connell & Sullivan 2022.
  35. ↑ AP 2003.
  36. ↑ Anderson 2003; Rea 2009; Choi 2012; Hadley 2019, pp. 401, 407.
  37. ↑ Tan 2013, p. 66, quoting Waitangi Tribunal 2011, pp. 69, 101 n. 12.
  38. 1 2 Carmen, Guitar & Dillon 2012, p. 141.
  39. ↑ Tan 2013, p. 64; Bradley 2011, Introduction.
  40. ↑ King 2014, p. 47.
  41. ↑ Bradley 2011, § Damages.
  42. 1 2 Cummings 2013, p. 280; Grassi 2016, pp. 57–58.
  43. ↑ Cummings 2013, p. 280, quoting Whitmill complaint 2011, ¶ 1.
  44. ↑ Whitmill complaint 2011, ¶ 1.
  45. ↑ Cummings 2013, p. 294, citing Whitmill answer 2011, Additional Defenses (pp. 8–9).
  46. ↑ Cummings 2013, p. 281, quoting Whitmill answer 2011, Additional Defenses, ¶ 2.
  47. 1 2 Bradley 2011, § "Copyrightability of tattoos".
  48. ↑ Cummings 2013, p. 281.
  49. 1 2 McNary 2011.
  50. ↑ King 2014, p. 59, quoting counsel to Warner Bros. "'Well, sure. You have got this powerful figure, Mike Tyson, in the original film with the tattoo on his face. What does he do? He knocks someone out when he is angry at them. He is the epitome of male aggression. Instead, now you have this milquetoast character with the same tattoo on his face. It's a real spoof on men and their misadventures.'"
  51. ↑ King 2014, pp. 67–68, citing Nimmer 2011, ¶ 16.
  52. ↑ King 2013, p. 130.
  53. ↑ Cohen 2011.
  54. ↑ Labreque 2011, citing Whitmill memo in opposition 2011
  55. ↑ Belloni 2011.
  56. ↑ King 2013, p. 142. "As a result [of the dismissal], the Whitmill case failed to provide a written precedent in support of the copyrightability of tattoos."
  57. ↑ Grassi 2016, p. 59.
  58. ↑ Bradley 2011; Cummings 2013; Etter 2014.
  59. ↑ Bloom 2013, p. 447.
  60. ↑ Bradley 2011, § "Copyrightability of tattoos"; Bloom 2013, pp. 447–448.
  61. ↑ Bradley 2011, § "Ownership".
  62. ↑ Bradley 2011, § "What rights are covered by tattoo copyright?".
  63. ↑ King 2014, p. 63.
  64. ↑ King 2014, pp. 55–57, citing Kwall 2010, p. 107.
  65. ↑ King 2013, p. 159 n. 184; King 2014, p. 68.
  66. ↑ Bradley 2011, § "Warner Brothers' liability"; King 2014, pp. 56–57.
  67. 1 2 Bradley 2011, § "Damages".
  68. ↑ King 2014, pp. 58–61.
    • "[B]y its very nature, 'parody must be able to "conjure up" at least enough of [the] original to make the object of its critical wit recognizable.' ... Applying this factor to Whitmill, Warner Bros. took too much—the entire tattoo. Further, the nontransformative use weighs against using any more of the tattoo than necessary to make a parody" (p. 61, second brackets original).
    • "Even without relying on the parody/satire distinction, an analysis of the fair use factors weighs against finding that Warner Bros.' use of the tattoo is fair use" (p. 61 n. 189).
  69. ↑ Tan 2013, p. 66, quoting NZ Herald 2011. Ellipses original to Herald.
  70. ↑ NZ Herald 2011.
  71. ↑ Bloom 2013, p. 438.
  72. ↑ Hadley 2019, pp. 402–403.
  73. ↑ Tan 2013, pp. 66–67; Hadley 2019, p. 403.

Sources

Books

  • Cashmore, Ellis (2005). Tyson: Nurture of the Beast. Cambridge, England: Polity. ISBN 9780745630700. OL 3434892M.
  • Hoffer, Richard (1998). A Savage Business: The Comeback and Comedown of Mike Tyson. New York City: Simon & Schuster. ISBN 9780684809083. OL 689533M.
  • Kwall, Roberta Rosenthal (2010). The Soul of Creativity: Forging a Moral Rights Law for the United States. Stanford University Press. ISBN 9780804773416.

Academic sources

News coverage

Interviews and profiles

Other sources

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