A month ago the hot news was the federal copyright infringement lawsuit filed by Mike Tyson’s facial tattoo artist S. Victor Whitmill against Warner Brothers Entertainment, and Whitmill’s attempt to block the Memorial Day release of the highly anticipated blockbuster sequel movie The Hangover Part II, based on the film maker’s unauthorized reproduction and/or derivative of the tattoo design permanently inked on Tyson’s face, but still owned by the artist and creator of the design.
More recently, within the last week, the hot related news was the federal court’s decision to deny Whitmill’s motion for a preliminary injunction (brought to prevent the release of the film), but in reluctantly permitting the film’s timely release Chief Judge Catherine D. Perry seemed to foreshadow the likelihood of Warner Brothers paying dearly for not inking and negotiating a copyright license in advance.
What I find most interesting about the fact pattern of this lawsuit and the many presently unknown facts is the all-too-common potential for overlapping and competing intellectual property rights to the underlying subject matter in question — in this case, an artistic design that is copyrightable as an original work of authorship, and it also may function as a trademark or service mark, much like a logo or visual element of a brand. And, because the design now forms a permanent part of the visual appearance, persona, and likeness of a famous individual, it may also function as an element or aspect of Mike Tyson’s right of publicity.
When all possible intellectual property rights are bundled together and neatly owned by one party it permits the single owner to fully exploit the subject matter in a variety of ways by relying on multiple and differing legal rights, theories, and remedies. It gets pretty interesting, however, when not all of the intellectual property rights are owned by the same party — and, that’s when talented IP lawyers are needed to sort it all out, hopefully well in advance of the need for any enforcement.