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Five most intriguing copyright cases: Part I

Hint: #1 involves Mike Tyson’s face

In an ongoing pursuit of Intellectual Property law and knowledge base creation, this week’s post looks at some of the most intriguing copyright infringement cases to date.

Coming in at #1 is the case filed by tattoo artist Victor Whitmill against Warner Bros. and its Hangover II movie for copyright infringement of his infamous Mike Tyson face tattoo.

Filed in April 2011 in the Eastern District Court of Missouri, Whitmill and his attorney claimed the infringement lied in the fact that Whitmill retained copyright to the original artwork as evidenced by Mike Tyson’s signature on a binding release upon completion of the tattoo.

In it, the agreement stipulated that Mr. Whitmill retained all rights, and as such prohibited all uses except for Mike Tyson’s personal use. The movie duplicated the tat upon a leading character’s face, and produced legions of promotional materials that include close-up images of the actor and his Mike Tyson copy-tat-face artwork without Mr. Whitmill’s permission.

Judge Perry presided and on May 24th, two days before the film’s opening date, issued a ruling that at once denied Whitmill’s request to enjoin the movie’s open, but also noted the overall merits of his claim as sound and “winnable.” The parties have of course settled for an undisclosed amount.

#2: Obama Poster – The iconic poster image of then senator Obama filtered in caricature hues of red that Shepard Fairey made famous during the 2008 election turned out not to be his original creation.

Fairey used a picture taken by an Associated Press photographer to impose software filters upon, likely done in Photoshop, which led to a wonderfully strong image of now President Obama’s likeness.

When the AP sued for copyright infringement, Fairey publicly admitted he had used the photograph as his source and inspiration. Millions of posters, T-shirts and pins were sold, generating significant income for Fairey.

Despite public backlash and confusion, the outcomes against Fairey in both civil and criminal court proceedings got it right. While it’s perfectly fine and widely acceptable to stand upon the backs of others to produce say, academic works, it is not okay to do so when producing commercial works.

At best, the filters Fairey imposed to make the Obama image alter the original by 15 – 20 percent. At best. He fails the originality test, failed to list the photographer as co-creator, and to get the AP’s permission to do so in the first place. Mr. Fairey settled the civil case by paying the news company $1.6 million in damages.

He received two years probation from the criminal complaints. Next week’s post will wrap up with the final three most intriguing copyright cases.