Intellectual Property

UPDATE: Tyson, Tattoos, and the Hangover II: Warner Brothers Punches Back in Round Two of Copyright Lawsuit

Two recent filings in the Mike Tyson tattoo/Hangover II copyright lawsuit have shed some light on the relevant and novel issues to be addressed. On May 20th, Warner Brothers filed its motion/memorandum in opposition to tattoo artist, S. Victor Whitmill's, motion for a preliminary injunction. On the same date, Warner Brothers filed their answer to Whitmill's complaint.

In its opposition motion, Warner Brothers underscores the damages an injunction would cause at such a late date - within days of the movie's May 26th US release date. Warner Brothers states:

The harm to Warner Bros. and numerous third parties from such an injunction would be devastating. Warner Bros. has already spent approximately [redacted] million on advertising and promotion of the "The Hangover Part II" ("Hangover II"). All of that money will effectively be lost if the release of the film is enjoined. Prints of the movie have already been created and shipped to theaters across the country. If the release of the film is enjoined, those theaters - many of which have been selling advance tickets to the movie for weeks - will have nothing to replace it with over the critical Memorial Day weekend, resulting in losses to the theaters of an estimated [redacted] million and exposing Warner Bros. to massive damages claims by those theaters.   

In further opposition, Warner Brothers finds a friend in an old enemy - pirated and bootlegged movies. Warner Brothers states that in light of the large number of movies already sent to theaters, it is a "virtual certainty" that an injunction would result in leaked and pirated versions, "which would largely destroy the value of the movie."

Warner Brothers goes on to state that Whitmill will be unable to succeed on the claim's merits. Warner Brothers argues that tattoo copyrightability is a novel issue and without legal precedent. However, assuming copyrightability, Warner Brothers attacks Whitmill's claim as follows:

  • the movie's tattoo is a fair use parody of Tyson's tattoo;
  • Warner Bros.' use of the tattoo was permitted by Tyson's implied license; and
  • Whitmill is estopped because he failed to object to the tattoo's use in the first movie, The Hangover.

As for the answer, Warner Brothers denies: (a) that the tattoo appearing on Ed Helm's face in the Hangover II is an exact reproduction of the Tyson tattoo, and; (b) that there is any copyrightable expression in Tyson's tattoo. As for defenses, Warner Brothers asserts, among other things, that:

  • the tattoo is not copyrightable because it is not sufficiently original/creative;
  • tattoos on skin are not copyrightable;
  • Tyson, not Whitmill, is the tattoo's owner (or co-owner);
  • Tyson's tattoo is an unauthorized derivative work;
  • Whitmill has unclean hands because he infringed Warner Brothers' copyrights, including the movie The Dark Knight;
  • the tattoo's use is protected by the First Amendment; and
  • Tyson's signed release, acknowledging Whitmill as the tattoo's owner, is void against public policy and/or unconscionable (e.g., akin to a contract selling human organs)

Warner Brothers' arguments notwithstanding, it's possible that Whitmill has a valid claim. As noted in the New York Times:

The suit isn't frivolous, however, legal experts say. They contend the case could offer the first rulings on tricky questions about how far the rights of the copyright holder extend in creations that are, after all, on someone else's body. They are questions likely to crop up more often as it becomes more common for actors or athletes to have tattoos and as tattoo designs become more sophisticated.

Though not entirely related to the copyright issue, tattoos have been deemed protectable in other contexts. For instance, in the case of Anderson v. City of Hermosa Beach, 2010 U.S. App. LEXIS 18838 (9th Cir. Cal. Sept. 9, 2010), the 9th Circuit split with several jurisdictions and held that tattooing was purely expressive activity fully protected by the First Amendment. The court held that a total ban on such activity was not a reasonable "time, place, or manner" restriction.

Moreover, as noted in the New York Times article, the issues could have a greater relevancy with regards to actors or athletes. Take for instance the recent lawsuit involving the NCAA, student athletes and their video game images. It's easy to imagine a similar scenario concerning athletes and unauthorized images that make use of their tattoos.

View or download Warner Brothers' entire opposition to injunctive relief filed in S. Victor Whitmill vs. Warner Bros. Entertainment Inc., 11-cv-00752 (E.D. Mo. May 20, 2011)

View or download Warner Brothers' entire answer filed in S. Victor Whitmill vs. Warner Bros. Entertainment Inc., 11-cv-00752 (E.D. Mo. May 20, 2011)

 

For more information on this case, read:

The Best Copyright Complaint Ever? Possibly, When You Have Mike Tyson, Face Tattoos and The Hangover 2 - FREE DOWNLOAD

Copyright Dispute May Hang Up Release of "The Hangover 2"

The Hangover 2 and the Tyson Tattoo: Lessons in Copyright, Contract, and Clearance

 

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  • This case is very interesting. Esp. when you read the original claim wherein Whitmill and his attorney 'make it very clear' that this case is not against Mr. Mike Tyson... Ha, ha!. Hysterical. But if that's the case, I do think the merits are weaker, since as the studio submits, the sequel was making a simple parody of the former boxer. If he had issue of the commercial use, Mr. Whitmill should have filed claim during the first movie.