Friday, May 27, 2011

Ink Think

Lots of interesting commentary on the Hangover II tattoo case.  David Post says it "precisely mirror[s]" a hypothetical he uses in his Intro to IP class.  He thinks the tattoo artist "has a very strong infringement claim"; the trickiest question is "whether Mike Tyson’s face is a 'tangible medium of expression,'" but "by my reckoning, the tattoo here clearly fits the bill: once it’s on Tyson’s face, it can be perceived by others for more than a 'transitory duration.'"

Mike Madison and Ann Bartow both think the tattoo artist should lose -- Madison because "human skin is not a 'tangible medium of expression' for copyright purposes," and Bartow on grounds of "copyright scope. My understanding is the Hangover tattoo is not identical to Tyson’s. It may be similar [but] I wouldn’t give the artist much protection beyond exact copying."  Aaron Perzanowski pushes back a bit:

"Can you point to any statutory support or case law that articulates the 'medium of expression' as a discrete requirement for protection, apart from fixation and originality? And can you provide any support for the notion that if such a requirement exists, it implies some sort of human body exception?
There might be good reasons for the plaintiff to lose in this case – a lack of originality, implied license, fair use – but I don’t think Hangover II presents a big enough problem to formulate new doctrine."