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Warner Bros. Forced To Fight For Fair Use 222

Posted by Soulskill
from the crossing-the-aisle dept.
V-similitude writes with news that Warner Bros. has been forced into a position of claiming 'fair use' in the defense of an upcoming movie. From the NYTimes: "In The Hangover Part II, the sequel to the very successful what-happened-last-night comedy, the character played by Ed Helms wakes up with a permanent tattoo bracketing his left eye. The Maori-inspired design is instantly recognizable as the one sported by the boxer Mike Tyson, which is part of the joke. (Mr. Tyson makes an appearance in both films, playing himself.) But S. Victor Whitmill, a tattoo artist formerly of Las Vegas and currently from rural Missouri, doesn't quite see the humor. Mr. Whitmill designed the tattoo for Mr. Tyson, called it 'tribal tattoo,' and claims it as a copyrighted work. ... Warner Brothers in its brief also invoked the 'fair use' defense for Hangover Part II, namely the right to parody what has become a well-known tattoo since it first appeared on Mr. Tyson’s face in February 2003."
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Warner Bros. Forced To Fight For Fair Use

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  • by betterunixthanunix (980855) on Saturday May 21, 2011 @03:37PM (#36203616)
    For Hollywood, copyright has one meaning: inflating their profits. Unfortunately, almost everyone in America has forgotten that copyright is supposed to exist to improve the people's access to works of art and science, not just to make money for copyright holders, and so Hollywood manages to get away with their abuse of our legal system.
    • by trout007 (975317) on Saturday May 21, 2011 @04:02PM (#36203782)

      Did you ever wonder why the movie industry is located in Hollywood? It was because Edison who owned the patent to motion pictures was very strict as to the types of movies that could be made. So all of the famous studios you know today were started out west where they could easily avoid the patent enforcement that was happening back east.

      • Patent and copyright are two very different beasts....
        • by JAlexoi (1085785)
          Not really. Both deal with rights to profit from results of intellectual activity.
        • by lennier1 (264730) on Saturday May 21, 2011 @04:38PM (#36204002)

          True, one is generating a shitload of money for lawyers and the other ... oh wait! ;)

          • by hedwards (940851)

            The difference is that patents expire, eventually, whereas copyrights seem to no longer expire.

        • by Undead Waffle (1447615) on Saturday May 21, 2011 @05:03PM (#36204148)

          Patent and copyright are two very different beasts....

          So different, in fact, that there is only one clause [wikipedia.org] in the Constitution granting Congress the power to create both of them.

          • by Tharsman (1364603) on Saturday May 21, 2011 @08:40PM (#36205490)

            Both are forms of intellectual property, but both are still very different in scope and execution.

            Patents cover inventions. Also, patents require thousands and thousands of dollars to apply for, and it may take millions to defend against a patent claim. It can take at least 5 figures to attempt get a patent invalidated, no matter how unfair it is or how much prior art there may be. Patents also work as a blockade, as soon as you have them, you can legally stop anyone from inventing something that is too similar or depends on similar ideas, even if the new inventor had no knowledge of the existence of your patent.

            Copyright covers arts and literature. Copyrights are automatic. As soon as you write a page of a short story or do a doodle, the copyright belongs to you. Although a copyright case can also eat a lot of money, it is focused on proving the infringing artist was aware of your work before he made his. If he had no clue of it, and you had no evidence to the contrary, there is no case. If you have evidence, then things can get more complex and things like Fair Use come into play. Copyrights do not work as a creative barricade. As long as my work is unique enough, similitude or reuse of certain ideas is fair game, even if you were aware of the original art.

            Without copyrights, a writer that comes up with a script and attempts to sell the script to a studio can forget about it. As soon as he shows the script, the studio would be able to just make the movie and never give a penny back. An indie developer would also get screwed. He would spend months or years working in a game, publish it, and now any big studio can decide to just copy his work and sell it in big stores without giving him a penny.

            The only problem right now with copyright law, is how it's used by the music industry to harass civilians, specially the use of precedent to claim absurd amounts from theses poor people, cases that were originally ruled upon the idea that a big corporation doing the infringement should not feel the consequences of being caught to be negligible. Citizens should not be pursued under that same standard.

            Patents are horrible, and turn the inventing into an over encumbered practice. You are expected to do insane amounts of research before you can even proceed with the most ridiculously small segments of inventions, you may find that a round knob in a centered position on the top of a box to be patented. It is nearly impossible to do and ends up making it a huge gamble for anyone but large corporations to invent anything without running the risk of being sued to bankruptcy.

            Patents need to be killed. They are horrible and just get in the way of progress, counter to what they were designed to do. Products name and design should be allowed to be copyrighted as the only way to protect the creator from being ripped off.

            • by MikeBabcock (65886) <mtb-slashdot@mikebabcock.ca> on Saturday May 21, 2011 @09:01PM (#36205604) Homepage Journal

              Both patents and Copyright are excellent, in the form described by Congress originally.

              Copyright and patents as (very) limited times for authors to have power over those who would steal their inventions is worthwhile and good for any economy. However, 100+ year Copyrights and absurd "barely any different" patents that act as infinite extensions are not.

              The system needs reform, not demolition.

              • by dryeo (100693)

                Patents were broken long ago. The innovations related to the steam engine were delayed by decades due to patents.
                A more recent example is the airplane. Once again due to patents innovation was stifled until the patents expired or were taken away by immanent domain due to the First World War.

            • by trout007 (975317) on Saturday May 21, 2011 @11:26PM (#36206124)

              I used to think similar things. But I kept seeing how the system was being abused. I read the following book Against intellectual Property. As one would expect this book is public domain. It gives examples from history and ideas for the future about how creative people can still make money without intellectual property rights. Thing food and clothing. Recipes and designs cannot be copyrighted. Yet these industries thrive and the creative people make money inspire of copies. The one part of intellectual property the author finds the sleast offensive is trademarks. Copying a trade mark is akin to fraud since you are claiming the product you made is made by another company.

              http://mises.org/journals/jls/15_2/15_2_1.pdf [mises.org]

        • by Yvanhoe (564877)
          Same beast, two heads. It is named intellectual property. And Stallman owns a katana.
          • No, Stallman owns a butter knife, and thinks it is a katana.

            If it really was, the beast would've been slain decades ago.

        • At the time, however, the equipment that allowed you to create and/or view the motion pictures was covered by Edison's patents, and so it gave him significant leverage in imposing morality codes on what people produced using that equipment. Read up on Edison sometime - he was a complete asshole not satisfied with making shitloads of money when he could also gain total control over whatever he touched.

          http://en.wikipedia.org/wiki/Motion_Picture_Patents_Company [wikipedia.org]

    • Re: (Score:3, Insightful)

      by QuasiSteve (2042606)

      Wait.. did I miss it? Were the authors of Star Wreck: In the Pirkinning sued by LucasFilm / Paramount / any of the other companies involved with the Star * sci-fi series?

      Because I"m pretty sure that downloading/uploading a copy of a movie doesn't fall under most interpretations of the 'fair use' doctine, whereas satire and parody (see story) do.

      I would argue that Mr. Tyson is part of the 'work', and by modifying the work of art by putting it on the other guy's face for parody purposes, means the original a

      • by hedwards (940851)

        If it's based that heavily on the original then it's likely to be considered a derivative work. And since there is apparently no creativity involved with recreating the tattoo for the movie it should be considered a derivative work.

        As such, there definitely is going to be something of significance to this case if Warner Brothers manages to win. Or even if they don't, this would likely still have some pretty astonishing effects on the tattoo industry.

    • Exactly. There is no hypocrisy here. They do what they can, according to the law. Just like you, or I, or any sane person would do if we ever appeared in court.
      • by Compaqt (1758360)

        Or another option:

        Both:
        1) There is hypocrisy.
        2) They do what they can, according to the law.

      • There is no hypocrisy here. They do what they can, according to the law. Just like you, or I, or any sane person would do if we ever appeared in court.

        Hypocrisy is holding others to a standard to which you're not willing to hold yourself, which is exactly what's happening here. No, it's not illegal, but it's repulsive. And no, sane people do not take every possible advantage of the law to bludgeon people, and then use that same law as a defense when they're the ones on the receiving end of the bludgeoning. Sane people do their best to avoid legal conflict altogether, which is something the IP industry is notably reluctant to do.

        • Wow, I really don't think you understand the world.

          Sane people do their best to avoid legal conflict altogether

          Sane people avoid legal conflict, except when it is in their interest. Which is why the law exists in the first place.

          And no, sane people do not take every possible advantage of the law to bludgeon people, and then use that same law as a defense when they're the ones on the receiving end of the bludgeoning

          Yes, yes, actually they do. Especially in regarding IP law, which has a long history of legal fighting, and delicate balances being formed, for example, between song-writers, publishers, and performers.

          Hypocrisy is holding others to a standard to which you're not willing to hold yourself, which is exactly what's happening here

          The standard here is the law, as interpreted by the court. Let me know when Warner Bros gets parodied by someone, as judged by a court, and t

          • I understand the world just fine. I particularly understand that corporations like Warner which see the law as a weapon to be used and abused at every opportunity, and the corporate apologists who cheer them on, do your level best every day to make the world a worse place to live.

            Sane people see filing suit as a last resort, not standard practice. Sane people do not decide to go to court the minute they think they might gain some advantage by doing so. Sane people know that the law doesn't, can't, and sh

            • Oh no sir, if I were trying my best to make the world a worse place, I would rid you of it. Take that.

              Fear not the corporation. It's just a bunch of people.
    • From the Warner Bros. Counsel:
      “That’s the real question: the copyright act balances the copyright owners’ rights and not stifling the creativity of the owners — it would stifle creativity to not be able to make a parody,” Mr. Harkins said.
      It is good to know that Warner Bros. has such a good handle on copyright law and I am sure they will stop sending DMCA takedown notices to people who post parody videos on YouTube.
    • by ArsonSmith (13997)

      For Hollywood, copyright has one meaning: inflating their profits. Unfortunately, almost everyone in America has forgotten that copyright is supposed to exist to improve the people's access to works of art by making money for copyright holders, and so Hollywood manages to get away with their abuse of our legal system.

      FTFY

  • by Oxford_Comma_Lover (1679530) on Saturday May 21, 2011 @03:40PM (#36203640)

    The major content producers are Pro-IP because it's where all their money is, sure, but the argument WB is making is that it's a parody, and *nobody* in the US comes close to saying parodies are not okay, because courts would reject that argument. Kind of like how in the recent video game case, the real trick was trying to get around any reasoning that meant the government could ban books.

    The First Amendment makes it really hard to argue parodies are not okay.

    • by hedwards (940851)

      Except that this isn't parody by any reasonable definition. Which is going to be a real problem. I haven't seen the film, but merely slapping an identical looking design onto a character, even if the character is a parody, is not sufficient to extend fair use to that. Especially since there's no reason why the design needs to be that similar to the original.

  • by Anonymous Coward on Saturday May 21, 2011 @03:44PM (#36203672)

    does this make Mike Tyson a work of art or a piece of work?

  • by Osgeld (1900440) on Saturday May 21, 2011 @03:47PM (#36203696)

    I thought it was the face tattoo from star trek voyager's Chakotay

  • by Anonymous Coward on Saturday May 21, 2011 @03:57PM (#36203746)

    According to US copyright law, when you perform a work for hire, such as a painting or a tattoo, the work becomes the property of the person the work is performed for unless otherwise agreed upon.

    So the work belonged to Tyson, not the artist at that point (unless they agreed otherwise). And if Tyson gave permission for it to be used, then there is no problem.

    • by mangu (126918)

      According to US copyright law, when you perform a work for hire, such as a painting or a tattoo, the work becomes the property of the person the work is performed for unless otherwise agreed upon.

      Tell that to the photographer you hired for your wedding.

      • Re: (Score:3, Interesting)

        by QuasiSteve (2042606)

        Well that's usually in their contract. Thankfully, not every photographer does this.. hit google to find out where you can find them and whether they're available for shoots.

        The question then is whether or not Mr. Tyson signed a similar such contract OR whether the work could fall under the same laws that absurdly make taking photos of statues and other works of art ( http://en.wikipedia.org/wiki/Cloud_Gate [wikipedia.org] ) violations of copyright resting on them from their original artist - enforced only when commercial

      • They make you sign an agreement that they retain the copyright... get a good photographer, pay the higher price, and have it be a work for hire instead of the standard contract that leaves those photos as his/her property!

        • In the US, no professional photographer is going to relinquish their copyright just to take photos of you unless you are a celebrity and/or are willing to pay a HUGE amount of money. The client doesn't need reproduction rights to the artwork; they just need copies of the artwork. The photographer needs the copyright because it is THEIR artistic vision that set up, directed, lit, took, and edited the shot. Not you. It may be a picture OF you, but it is still the photographer's aesthetic choices that make

          • Most of them want to retain the copyright so they can charge you obscene amounts of money to get the prints. They want you to have to pay them for every single copy of every picture that you want. Of course, they bury this in a 20 page contract filled with obtuse legal jargon so that it's hard to find. You only figure this out after your wedding, after all the pictures have been taken, and after your photographer has told you that you'll be paying $20 for every 5x7 copy of every picture you want. They w
            • First of all, "negatives" are a thing of the past insofar as 99% of wedding photography is concerned. It's all digital now. You want the unedited raw files? What would you want with them, clone out all the blemishes and do your own post processing because you're SO much better at it than the photographer you've paid to do it for you?

              Let's put it this way: feel free to take your own damned wedding photos if you think the photographer's just there to snap some shots. Nobody's stopping you. You want comp

          • "That copyright permits them to use the image for non-commercial purposes."

            False. Copyright gives them *full* rights to the work. If they want to sell them (maybe you'll be famous 20 years from now, maybe they'll sell it for use as clip art) they can do so without your consent. If they just want it for non-commercial and portfolio uses, I'll happily license it *to them* for that purpose. Otherwise, I hired them and it's work-for-hire. If they don't want the job I'll give it to someone else.
      • by cynyr (703126)

        Hmm? I own all my wedding photos, and have the document to prove it. Now I did end paying 2-3 times what i could have, but I really wanted the copyright assignment. Of course in the contract was the ability for the photo place to use them in advertising and promotional material, and I would hardly ever deny a photographer rights to use it in a portfolio, and if I did I know I pay very well for it.

    • by hedwards (940851)

      Mike Tyson apparently doesn't own the rights to the original. It was apparently agreed to that the tattoo artist would own the copyright to the tattoo. Which seems odd to me, but that was apparently what they agreed to.

      • It was apparently agreed to that the tattoo artist would own the copyright to the tattoo. Which seems odd to me, but that was apparently what they agreed to.

        I have a friend with lots of tattoos, one of them actually includes a (c) symbol on her skin. So I'm thinking it may be pretty common after all.

      • What kind of idiot agrees to let someone else have the copyright on something that is permanently on your face?

        Oh, wait, I forgot we were talking about Mike Tyson here. Never mind.

        • Why? What possible use would it be for you to have the right to duplicate it - unless you happen to be a tattoo artist?

      • by brusk (135896)

        Which seems odd to me, but that was apparently what they agreed to.

        It's pretty much the same as a painting Tyson might have purchased from an artist: he would own the painting, but the artist would retain copyright (unless it was contracted as a work for hire). It doesn't matter, legally, that the work happens to be on his body.

    • It is only automatically assumed as a work for hire if the creator is an employee of the person/company that did the hiring. One-off contracts like with a wedding photographer or a tattoo artist are not employer-employee relationships, and the works are not assumed to be works-for-hire unless the contract says so (now, a wedding photographer is going to spell it out in their contract either way, because they want to make it clear to you).
    • by RogerWilco (99615)

      The tattoo on Tyson is probably his, but the design might not be.

    • According to US copyright law, when you perform a work for hire, such as a painting or a tattoo, the work becomes the property of the person the work is performed for unless otherwise agreed upon.

      So the work belonged to Tyson, not the artist at that point (unless they agreed otherwise). And if Tyson gave permission for it to be used, then there is no problem.

      Brilliant! I'm getting a tatoo with a flag and a half eaten apple surrounded by a hex code on my ass so I can moon a whole court room full of copyright and trademark litigators when Sony, MS and Apple sue me!

  • by frovingslosh (582462) on Saturday May 21, 2011 @04:01PM (#36203770)
    Warner Brothers further stated that Mr. Whitmill failed to use any DRM when creating the tattoo, which would not only have protected the tattoo but also effectively served to keep it out of public domain even after the copyright expires, circumventing the intent of copyright law as spelled out in the Constitution.
  • It sounds like the general public has discovered that copyright law and trademark law allows them to do an end-run around the 1st amendment. From the article:

    The range of material that individuals and businesses are seeking to get copyright protection for has only been expanding, often at the insistence of movie studios. Mattel has gone to court to assert the copyright of the face of its Barbie doll; fashion companies have been lobbying Congress to pass a law to protect unique, nontrivial new designs. And trademark, which is governed by different laws and is much more contextual, has been used by athletes and coaches to get a measure of control over terms like “three-peat” or “Revis Island.”

    This system is broken. Culture should not be owned.

    • Culture should not be owned.

      And no reference to convicted rapist Mike Tyson should ever include the term "Culture".

      • He is, whether you like it or not. Sorry. Deal. If you don't like it, go shoot him yourself, though that won't stop people from talking about him.

  • A question (Score:5, Insightful)

    by Vinegar Joe (998110) on Saturday May 21, 2011 @04:26PM (#36203940)

    Does S. Victor Whitmill have permission from the Maori people to produce tattoos based on their designs?

    • Re: (Score:3, Informative)

      by Anonymous Coward

      Insightful... those designs are protected in New Zealand at least via the Treaty of Waitangi.

    • Re:A question (Score:4, Interesting)

      by hedwards (940851) on Saturday May 21, 2011 @05:05PM (#36204160)

      Why would he need that? By that logic architects would need permission from the Romans whenever they chose to include Roman arches in their buildings. A lot of architects would be liable for infringement around here if that were true.

    • My father, who's somewhat of an authority on tribal art (he's a self-employed bodypainter and has published a book about tribal art), had an interesting tidbit for me when I mentioned this story to him. Mike Tyson has said that his tribal tattoo is a warrior's tattoo based on art from the Maori tribes. According to my father's research, the Maori and other tribes in that area of the world do produce such art, although the warrior tattoos are meant to be a form of endurance testing. The warriors of the tribe

    • Re:A question (Score:4, Insightful)

      by Hairy1 (180056) on Saturday May 21, 2011 @11:05PM (#36206056) Homepage

      This is an interesting question because it brings up a serious problem with how poor the common domain has become. Maori have a culture and cultural artifacts which they own collectively. It is their culture. No single Maori can claim it for themselves, but they together own it. Today virtually all the cultural artifacts of our period are owned by someone else. Try and use the artifacts of your own culture in a new work and just see how fast you will find yourself in court for copyright violation.

      Sing a popular song, draw a picture of a Coke can, or copy a tattoo from someone who is famous, and suddenly it's a huge problem. But it is clearly a double standard. They can copy cultural artifacts, but we cannot copy them.

      I'm not really standing up for pirates - outright duplication of works for profit - but I do think that there should be a liberal ability for individuals to copy segments in order to create new works.

  • by sootman (158191) on Saturday May 21, 2011 @04:31PM (#36203976) Homepage Journal

    We are thoroughly in favor of Fair Use rights... as long as it's in our favor. Help a brother out? (Ha! Get it?)

    Yours truly,

    - Warner Bros. Legal Department

  • No doubt, if you or I, having seen the movie, wanted to paint ourselves up like Ed Helm, Warner would claim we're violating THEIR rights

  • I think that they should be charged for every person that could have potentially seen the ads with the tattoo. If they pay 17trillion dollars to Mr. Whitmill that should cover all the infringement. Seems fair to me.
  • is a flaming asshole. He should be sued by the Maori, from whom he ripped off "his" design. What a scumbag.

  • by CheerfulMacFanboy (1900788) on Saturday May 21, 2011 @05:38PM (#36204394) Journal
    "Tribal" artwork is owned by the tribes who used them for millennia - they feel bad enough about Westerners just using those sacred symbols (or some imitation) for a stale fashion statement. But actually trying to claim copyright on something you yourself copied?

    Good artists copy, great tattoo artists from rural Missisoupy claim copyright.

    • I was about to make a similar point. The tattoo artist is a hypocrite,

    • by swillden (191260)

      "Tribal" artwork is owned by the tribes who used them for millennia

      By that argument, it's in the public domain, so no one has any claim on it. Which actually makes perfect sense to me!

    • ""Tribal" artwork is owned by the tribes who used them for millennia"

      Even with the ridiculous extensions in copyright law constantly being passed anything owned "for millennia" is in the public domain by now.
  • We have seen the parody fair use claim before and watched it fail when the item in question is a complete replication of the work in question. By precedent, Warner Bros should lose this one.

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