Get your popcorn ready Memorial Day weekend moviegoers. The Hangover: Part II hits theatres this weekend on the back of U.S. District Court Judge Catherine D. Perry denying S. Victor Whitmill's temporary injunction to prevent the movie's highly anticipated Warner Bros. release.
Ex Posts Facto broke down the scorecard on copyright infringement, and it appears I was right on all accounts. See the analysis here.
S. Victor Whitmill, the tattoo artist who created the original tattoo for former heavyweight boxing champ Mike Tyson, who also appears in both Hangover films, brought suit April 28 seeking an injunction and damages for copyright infringement. Warner Bros. executives Dan Fellman and Sue Kroll testified at a hearing Monday that issuing an injunction against the film's release would inflict irreparable harm on the studio, which has spent more than $80 million to market the film. Warner's contention was echoed in a statement, "Plaintiff's failed attempt to enjoin the film in order to try and extract a massive settlement payment from Warner Bros. was highly inappropriate and unwarranted."
The federal judge agreed the studio basically could neglect to research existing copyrights although it has departments specifically for such a purpose, use a great marketing tie to a potentially infringing work, and release a movie on the back of such hype, all because people need to see blockbusters during Memorial Day weekend and theatre owners would be sad. The powerful studio is not out of hot water, as she is allowing the case to move forward. She stated Whitmill had a strong likelihood of ultimately succeeding on the merits of the case but that the hardship on the studio and the third-party theater owners who planned to screen the film this weekend would simply be too great.
Side note: I was always told by a law professor the one thing lawyers lose in practice is common sense. I believe common sense is where the judge was lacking here. If you ask anyone who eagerly awaited this film and you asked them why, the first thing they would say is, "Stu has Mike Tyson's tattoo!". The second would be "and there's a monkey!"
S. Victor Whitmill created the distinctive tribal tattoo on Mike Tyson's face, received copyright from the US Copyright office, and had Mike Tyson sign a release to all rights to the tattoo, all back in 2003. The central part of The Hangover: Part II's advertising has actually been the tattoo on Ed Helm's face. Of course Whitmill has a strong likelihood of ultimately succeeding on the merits. The key word is ultimately. Now, without the leverage of an injunction staring Warner Bros. in the face, as a big studio with deep pockets they can let the suit drag on for months or even years, playing a game of litigious chicken until Whitmill's lawyers decide not to work for free anymore (which they probably are).
However, Judge Perry did say she was willing to hold an expedited trial on the issue of liability and consider a request for a permanent injunction, which could stop the film's distribution (on DVD, cable and other outlets) at a later date.
In the hearing Monday it was revealed by a Warner Bros. lawyer that Whitmill asked Warners for a $30 million settlement, but Whitmill lawyers argued to the judge that the $30 million demand came up only after Warners asked for an assessment of what the studio's potential damages exposure might be. Chances are Whitmill is now looking at a significantly smaller amount in a settlement.
The case will now proceed as regular copyright infringement, with Whitmill required to first show that he has a valid copyright in the image and that the one depicted in Hangover 2 is substantially similar.
Whitmill attorney Geoffrey Gerber made the following statement:
"While we are disappointed that the motion was denied, we are quite pleased by Judge Perry's findings that Mr. Whitmill proved a "strong likelihood of success" on the merits and that most of Warner Bros. defenses were "just silly." Judge Perry recognized copyright law protects tattoos and that Warner Bros. had no permission to use Mr. Whitmill's artwork in the movie. We look forward to further vindicating our client's rights at trial in the near future, including a permanent injunction preventing further distribution of the movie. In her decision, the judge expressed concern about the potential harm that could be suffered by all of the theater operators if the movie could not open this weekend. We certainly understand. These are innocent third parties put in this position by Warner Bros."
Right now it looks like S. Victor has a hangover of his own. Whether he can actually profit from it is still yet to be seen.