The basis of the claim is copyright in the tattoo which adorns Tyson's battered-yet-formidable viz. He took the trouble to register this thing at the US Copyright Office and, since they conduct some minimal examination, there is perhaps some form of presumption that copyright subsists. The infringement is apparently parodic, which might save it in the US (but not every country has a parody defence) - we are not familiar with the Hangover series, but the gentleman in the film (pictured courtesy of The Age) appears to be physically pretty much the opposite of Iron Mike.
We thought this might be the first tattoo copyright case, but apparently not - there are reports that back in 2005, tattooist Matthew John Arthur Reed of TigerLilly Tattoo and DesignWork sued in the District of Oregon in respect of adverts featuring NBA star Rasheed Wallace, the man who he had actually tattooed. He too had registered tattoos as copyright works, though in his case the registrations do not make it clear that this is what the drawings are. Case settled, apparently.
"Crazy Americans", I hear you mutter - but not so fast, for this is a truly global IP issue. One Louis Malloy, a UK celeb tattooiste, threatened (and may have carried through with) a copyright action in respect of tattoos he created on the person of clothes-horse and occasional footie star David Beckham, according to the Daily Mirror.
Why does this strike me as wrong? The subsistence of copyright isn't the problem - you have a design of some kind, applied to a material substrate, and there might be a preliminary drawing too. But is the reproduction in the human body of the tattooee any kind of infringement? That doesn't feel quite right.
Commercially, too, when you tattoo a celeb, you must surely grant some kind of implied licence that they can walk around doing the stuff celebs are so very well paid to do - which includes advertising (unless you also took the trouble to tattoo in some small print with it). Finally, if anyone has rights in that Tyson tattoo, isn't it the Māori? They might be more of a match for Tyson than poor Hungover Ed Helms.
