Legally Speaking: Tattoo You-Lawsuits Over Body Art Lead to Lots of Ink

John G. Browning May 17, 2011, 4:40am

Tattoos are becoming the subject of legal battles lately, and not always in ways you might expect.

Recently, S. Victor Whitmill—the tattoo artist who created, inked, and copyrighted Mike Tyson's distinctive facial tattoo—sued Warner Brothers for allegedly using his design in the movie "The Hangover: Part II" without his permission. As anyone who has seen the trailers or commercials for the film know, the mild-mannered dentist played by actor Ed Helms sports a facial tattoo much like Tyson's "tribal" pattern.

Whitmill filed a suit in federal court in Missouri for copyright infringement, and is seeking, among other things, an injunction to keep the film from being released. Will the movie studio or the artist win?

I may not be Warner Brothers' lawyer, but if I were I'd argue that the tattoo is a parody of Tyson's look and a comic element of the movie. After all, parody is a protected form of "fair use," and an exception to the general rules about copyright infringement.

But Whitmill is hardly the first tattoo artist to take legal action over his designs. In 2005, body artist Louis Molloy was miffed when his client, soccer icon David Beckham, planned to feature his skin art prominently in an ad campaign.

The 48-year-old artist, who had created at least nine of the British soccer star's tattoos, threatened to sue for copyright infringement. And in 2005, Matthew Reed of Portland, Oregon's Tiger Lilly Tattoo filed a federal lawsuit to keep NBA star Rasheed Wallace and Nike from featuring the copyrighted tattoo he had done for Wallace in ads for Nike basketball shoes.

The ads showcased Wallace's arm, emblazoned with an "Egyptian-themed family design" with a king, queen, three children, and a stylized sun in the background. Wallace had Reed come up with and ink the tattoo in 1998, while Wallace was with the Portland Trailblazers. Although he charged only $450 for the tattoo itself, by owning the copyright to his design Reed stood to gain a great deal more in court.

Celebrity tattoos and copyright infringement aside, it's often the mistakes in skin art that can land a tattoo parlor in legal hot water. Since there's no "spell check" or "auto correct" when you're permanently etching someone's body with ink, you would think tattoo artists would be pretty careful when it comes to spelling.

Unfortunately, mistakes happen. In 2007, Chicago auto mechanic Michael Duplessis filed a negligence lawsuit against tattoo artist Sam Hacker and Jade Dragon Tattoo & Body Piercing, claiming the artist had inked "Chi-tonw" on his chest instead of the Chicago moniker "Chi-town."

Spelling might not be a strength at Jade Dragon: in 2008, the tattoo parlor was sued over another typo, when Alfonse Wingfield claimed that the word "tomorrow" in a tattoo he had done for $250 was misspelled. Artist Mike Edrington maintains that Wingfield himself misspelled the word on the slip of paper he brought to the studio, and that he simply performed the work exactly as specified—typo and all.

And nothing can ruin a sports fan's dream of immortalizing his favorite team by permanently displaying his team pride on his body more than a mistake. Chicago White Sox fan Eugenia Debis went to Mystic Tattoo Art & Body Piercing in Chicago (a city that apparently doesn't find its tattoo artists at spelling bees) for a design prominently composed of the Sox logo.

Artist Micah St. John worked on a proof of the design before applying it to the outside of Debis' thigh. When the woman was able to see the finished product, she discovered to her horror that the design was backwards, with the word "Sox" in reverse, according to the 2010 lawsuit she filed against Mystic and Mr. St. John (no wonder it looked good in the mirror).

After his beloved St. Louis Cardinals won the 2006 World Series, 20-year-old college student Jason Harris went to St. Louis' House of Ink to memorialize the triumph. But instead of the words "St. Louis Cardinals, World Series Champions 2006" that he ordered, Harris' $190 tattoo contained the wrong year (2000), "world" was misspelled "worlb," and "champions" was shortened to "champs."

Although Harris filed a lawsuit, he also considered having the tattoo removed entirely. At least he didn't share Kimberly Vlaeminck's bad experience. The 18 year-old Belgian woman went to a tattoo parlor in 2009 for three stars to be inked on her face. She allegedly fell asleep during the procedure, and woke up in pain to find that 56 stars had been applied across one side of her face! She filed a criminal complaint against the tattoo artist.

Some individuals with tattoos have filed suit against employers who don't share their enthusiasm for body art. Employers win most lawsuits brought by former employees who claim they were wrongfully terminated or disciplined because of their ink, largely because dress codes are usually interpreted by courts as a reasonable measure that companies are entitled to take to safeguard their public image.

But in 2004, the EEOC filed a religious discrimination lawsuit in federal court in Seattle against restaurant chain Red Robin. According to the suit, Red Robin illegally fired food server Edward Rangel because he violated the chain's dress code prohibition against visible tattoos.

But Rangel maintained he was simply following the ancient Egyptian religion Kemet, whose doctrines required him to display tattoos on his wrists that resembled thin bracelets. In 2005, Red Robin settled the lawsuit for $150,000.

Of course, law enforcement learned long ago that something as distinctive as a tattoo can help identify both criminal suspects and victims. The Florida Department of Law Enforcement, for example, maintains a database containing hundreds of thousands of tattoos that have been cataloged from convicts who have been incarcerated in the state. That database has aided in tracking criminals and suspects, and in solving murders.

Homicide investigator Kevin Lloyd of the Los Angeles County Sheriff's office didn't need a database to solve a liquor store murder "cold case" that he had worked—a suspect's tattoo was all he needed. It seems that detective Lloyd spotted a photograph of Anthony Garcia while investigating an unrelated crime.

Garcia's chest bore an inked design called "Rivera Kills" (a reference to his affiliation with the Pico Rivera gang), and the elaborate tattoo featured details of a liquor store murder scene that only someone who was there was likely to know.

Recognizing the murder scene he himself had worked, Lloyd sent in an undercover detective posing as a gang member to share Garcia's cell and get him to talk. And talk Garcia did, admitting his role in the liquor store shooting. The unusual tattoo, along with Garcia's jailhouse admissions, resulted in him being convicted of first degree murder earlier this year.

As police Captain Mike Parker observed, "Think about it. He tattooed his confession on his chest. You have a degree of fate with this."

So, if you get a tattoo, be forewarned: it may result in more ink than you counted on.

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