With all the nonsense passing for headlines these days, you might not be aware of the legal debate examining the most important question of our times: can you copyright a tattoo? Posters for the upcoming movie “The Hangover II” feature a character adorned with a facial tattoo that closely resembles the very famous tattoo worn by Mike Tyson. As a result, the tattoo talent who designed Tyson’s tattoo is ticked off and suing. The Volokh Conspiracy considers the merits of the case.

The Copyright Act sets out the requirements for copyright protection: you have to have an “original work of authorship,” and it must be “fixed in a tangible medium of expression.” There’s not much question that Whitmill’s design is an “original work of authorship” — if it were painted on canvas, for instance, there’s no doubt that it would receive copyright protection. The harder question is whether Mike Tyson’s face is a “tangible medium of expression.”

The statute says that a work is “fixed in a tangible medium of expression” when its embodiment in a material object is “sufficiently permanent or stable to permit it to be perceived, reproduced, or otherwise communicated for a period of more than transitory duration.” By my reckoning, the tattoo here clearly fits the bill: once it’s on Tyson’s face, it can be perceived by others for more than a “transitory duration”; though the latter phrase could, I suppose, be so narrowed as to not include the “transitory duration” of, say, Mike Tyson’s life, that would be at odds with about a million copyright precedents. [The “transitory duration” language has been construed to eliminate things like a “buffer copy” of a file inside a computer, which is deleted after 0.01 seconds or so — or the evanescent images on a television screen, which vanish once they are projected onto the screen).

Back when I lived in Los Angeles, I was once passing through the parking lot of my local burger joint, “Howard’s Bacon and Avocado Burgers,” and I looked over and saw Mike Tyson walking past his car. He had the distinctive facial tattoo, and looked at me wearily as if to say, “Yeah, it’s me. Get over it.”