A scene from the trailer of Hangover 2 starts with Bradley Cooper’s character lying on the floor waking dazed and confused.
The screen pans a completely wrecked apartment. As Cooper seeks to steady himself by looking out the window, a similarly dazed and confused Zach Galifianakis’s character rolls out the top of a bunk bed in the background.
Cooper notes to Galifianakis the absence of his hair, to which Galifianakis reaches to his beard.
The pair walks into the bathroom to discover Ed Helms’s character, lying in the bathtub on a pillow. As Ed Helms arises from his fetal position, it is revealed he has a tribal tattoo on the left side of his face practically identical to Mike Tyson’s.
Cooper remarks to Helms, “You’re going to freak out, but everything is going to be okay”. Upon seeing the tribal tattoo on Ed Helms’s face, S. Victor Whitmill thought to himself a similar sentiment.
S. Victor Whitmill, the man who gave Mike Tyson his distinctive facial tattoo, has sued Warner Bros. over the similar-looking facial art on Ed Helms’ character in the upcoming The Hangover 2.
S. Victor Whitmill, an award-winning tattoo artist who calls the Tyson design “one of the most distinctive tattoos in the nation,” is asking for an injunction to stop the release of the highly-anticipated comedy sequel, set to be released in the U.S. over Memorial Day weekend.
Many laughed at Mr. Whitmill’s complaint as much as they laughed at the exploits of the Hangover self monikered “Wold Pack”. How can you sue over a tattoo? Can you even copyright a tattoo? In copyright, a lawyer, copyright legislation, and the right court jurisdiction may be the “three best friends that anybody can have”.
As strange as it may sound, Mr. Whitmill may have a case. Simply put, to prove his case Mr. Whitmill has to show he has ownership of a valid copyright and Warner Bros. copied his work.
To be “copyrightable” a work has to be an original creative idea “fixed in any tangible medium of expression”. The “tangible medium of expression” could include anything, from canvasses, walls, or the bodies of heavyweight champions. On February 10, 2003, Mr. Whitmill performed the tattoo on Mike Tyson, had Tyson sign a release granting Mr. Whitmill rights in the work, and took pictures of him creating the work on Tyson’s face.
No mention was made of a document declaring Tyson legally insane. Subsequently thereafter in 2003, Mr. Whitmill actually registered the tribal tattoo with the United States Copyright Office. A timely obtained certificate of registration creates a rebuttable presumption that a copyright is valid and that the registrant owns the copyright. Whitmill 1, Warner Bros. 0.
To show Warner Bros. copied Whitmill’s work, Whitmill only needs to prove Warner Bros. had access to Whitman’s work and there was “substantial similarity” between the two works. Whitmill argues “Warner Bros. Entertainment, Inc. — without attempting to contact Mr. Whitmill, obtain his permission, or credit his creation — has copied Mr. Whitmill’s Original Tattoo and placed it on the face of another actor … This unauthorized exploitation of the Original Tattoo constitutes copyright infringement.” It is clear Warner Bros. had access to Whitmill’s work and the works are “substantially similar”. Mike Tyson actually appears in the first and second Hangover movie, and the tattoo on the Helms character appears to be a direct comedic reference to Tyson. Whitmill 2, Warner Bros. 0.
Of course this is the movie industry. They are as powerful as Mike Tyson when he knocked out Michael Spinks in 90 seconds.
There are powerful defenses to copyright infringement. Warner Bros. could argue the copyright isn’t valid (rebut presumption – hard to do), or the studio changed the design just enough to escape infringement (unlikely), or the use in the film is “transformative,” meaning it is depicted in a larger context and thus a fair use (questionable), or that it’s a parody (easier to do). Whitmill 2, Warner Bros. 0-3? We’ll see.
Whitmill also is challenging the use of the image in ad materials and trailers.
The bottom line: Will Whitmill’s request for an injunction halt the film’s release or hefty settlement be reached prior? In the past Warner Bros. has had to reach hefty settelments due to copyright infringements or risk injunctions, so there is precedent against the movie giant.
In my opinion Warner Bros. should fork over the cash. The Hangover 2 will be a huge box office success. The risk of losing out of Memorial Day Weekend dollars by pushing the film’s release back will far outweigh the amount of a settlement.
Warner Bros. needs to hurry up and rid itself of a headache and keep a Hangover.
Exavier B. Pope, Esq. is an entertainment and sports attorney and legal blogger for Chicago Now. All opinions expressed are those solely of Mr. Pope.
(c) 2011, Exavier Pope
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