BROOKE GLADSTONE: This is On the Media. I'm Brooke Gladstone.

BOB GARFIELD: And I'm Bob Garfield. Boxer Mike Tyson was intimidating before he got a Maori-inspired tattoo on his face. With it, his stopping power almost KO’d a 110-million-dollar film. The artist who created the Tyson tattoo tried, but failed, to block Warner Brothers from releasing the new movie, The Hangover Part II, claiming copyright infringement because one of the film’s characters, played by Ed Helms, wakes up from a drunken night of partying inked exactly like Tyson.

[CLIP]:

ED HELMS AS STU: [YELLING] It’s not comin’ off! This is a real tattoo! Alan, what did you do? Did you roofie me?

ZACH GALIFIANAKIS AS ALAN: I didn’t do anything.

ACTOR: Stu, he swore to God.

[END CLIP]

BOB GARFIELD: The judge on the case decided too many people would be harmed financially if the film weren't released but did find that the artist might have a legitimate copyright claim and would likely win monetary damages at trial.

James Boyle, professor at Duke University School of Law, says the case could have set a worrisome precedent. James, welcome back to On the Media.

JAMES BOYLE: Thanks for having me.

BOB GARFIELD: So the judge says, no, we're going to let this film be released but there’s something here. What’s here?

JAMES BOYLE: Copyright is supposed to cover any kind of pictorial, graphic, written, musical expression that’s original and that’s fixed in material form. So the argument is, well, if you put it on canvas, it would be copyrightable, if you put it on paper, it would be copyrightable. Why isn't it copyrightable when you put it on human skin?

The more disturbing question is, first, whether or not we want copyright law to cover portions of the human body; is that actually what we mean by a tangible medium of expression? Is that what Congress would have wanted? Is that what we want?

Secondly, if we do, what kind of control does that give the person who creates the tattoo? Are they going to be able to tell me not to be filmed, not to have someone take a picture of me? After all, those would be copies of the copy. Can you imagine someone telling you that you actually can't show your face in front of any recording device?

It’s those kinds of dystopian musings that have a number of people disturbed.

BOB GARFIELD: I just want to clarify. This case came up not because of Mike Tyson’s tattoo, but because of the, the fake tattoo on Ed Helm in the movie. In the first film with Mike Tyson and his tattoo, this didn't come up because?

JAMES BOYLE: The tattoo artist and Mr. Tyson had actually concluded an agreement which allowed Mr. Tyson to wear the tattoo in public, be photographed, and so forth. So Mr. Tyson already had a release.

BOB GARFIELD: This is a comedy, and, and one area where the courts have been quite liberal is on the subject of satire. You’re allowed to parody. You’re allowed to do satire with wide berth on fair use. Could they not have taken the, the parody exemption and ended this discussion at the beginning?

JAMES BOYLE: The difficulty is what’s actually happening here? Is this a criticism of Mike Tyson or of Mike Tyson’s tattoo? Or is he using this tattoo in order to make a completely different point about the very dumb things that people do when they're drunk?

If the court thought it was the latter, then they might be less inclined to think that it was a fair use, even though it’s clearly transformative. They put it in a new context. They changed it. If, on the other hand, they were taking aim at the original or mocking it, then the courts are generally more hospitable. And there’s a sort of gray line in between.

Someone tried to take Dr. Seuss’ poem ”One Fish, Two Fish” and turn it into a poem about the O.J. Simpson trial. Instead of “One fish, two fish,” it went, “One knife, two wife, red knife, dead wife.” The court, when presented with the fair use argument there, said, no, you’re not commenting on Dr. Seuss. You’re using Dr. Seuss to comment on O.J. Simpson.

Is that the way the court would see it in this case, or would they say, no, actually he is kind of making fun of this practice of tattooing your face, and for that purpose he actually needed Mike Tyson’s tattoo?

BOB GARFIELD: Am I nuts, or is this case kind of an analog version of the notion of sampling, which we often deal with in the digital context and in hip-hop, for example, but now instead of notes of music we're talking about tattoo ink?

JAMES BOYLE: I think in a way it is. I mean, one question is [LAUGHS] what can you quote from the culture around you? A lot of that culture - music, pictures [LAUGHS], posters and so forth, tattoos - may be covered by copyrights. What can you quote?

Hip-hop samplers would like to be able to quote small, highly transformed fragments of other songs in their music. But a series of court decisions have thrown doubt on that and said – so the courts have said things like no amount of music above one note is too small to count as potential copyright infringement. Get a license or do not sample.

The question I ask myself is if we'd applied those kinds of rules, the same thought patterns to the development of jazz in the 1930s or, or 19 – 1910, would we have had jazz because, after all, jazz is all about quoting tiny fragments of other people’s tunes, and that’s what makes it an art form. If we're doing the kinds of things which would make today’s equivalent of jazz illegal, then I think we're making a mistake.

Of course, the tattoo artist would say this isn't about jazz, it’s just about somebody ripping off my copyrighted original work. But still, the tendency is a disturbing one.

[MUSIC UP AND UNDER]

BOB GARFIELD: Okay, I'm just going to stay away from the tattoo parlor -

JAMES BOYLE: [LAUGHS]

BOB GARFIELD: - and the lawyer, if it’s all the same to you. James, thank you so much.

JAMES BOYLE: It was my pleasure.

BOB GARFIELD: James Boyle is a professor of law at the Duke University School of Law.