'Hangover II' Tattoo Lawsuit: Warner Bros. Will Alter DVDs If Case Doesn't Settle Soon (Exclusive)

A Missouri judge has set a February trial date but the studio says it will digitally change the mark on Ed Helms' face after the film's theatrical run. Will a scheduled mediation settle the case?

5:02 PM PDT 6/8/2011 by Matthew Belloni

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Warner Bros.

"The Hangover Part II"

Ed Helms’ face might look very different when The Hangover Part II comes to DVD and Blu-ray in December.

Warner Bros. has told a Missouri judge that if it can’t resolve the ongoing legal fracas over the tattoo on display in the mega-grossing comedy by the time it comes out on home video, the studio will digitally alter the controversial mark on Helms’ face.

As you’ll recall, Warners was sued by a Missouri tattoo artist who claims he owns a copyright on the unique tattoo worn by former boxer Mike Tyson and Helms in Hangover II. The tattoo's owner, S. Victor Whitmill, attempted to stop the film’s release but was denied a preliminary injunction. Hangover II has since grossed $350 million worldwide and counting.

The case has continued, however, and U.S. District Judge Catherine Perry today set a jury trial date for Feb. 21, 2012. At issue is whether to award Whitmill a permanent injunction against the film's distribution and/or damages for copyright infringement.

Whitmill and his lawyers at St. Louis' Brickhouse Law Group had sought a trial in August. But Warners, in opposing that extremely expedited schedule, submitted court documents arguing that such a quick resolution wasn’t necessary because the studio plans to whitewash the offending mark from the movie after its theatrical run, thus eliminating any further alleged damages to Whitmill from his copyrighted tattoo appearing in the film:

“If the parties are unable to resolve their dispute, Warner Bros. does not intend to make any use of the allegedly infringing tattoo after the film ends its run in theaters because Warner Bros. will digitally alter the film to substitute a different tattoo on Ed Helms’s face."

Later, in a footnote of the same brief, Warners lawyers from Chicago’s Schiff Hardin firm and St. Louis’s Thompson Coburn firm say:

"The home video release is currently scheduled for early December 2011, which would allow Warner Bros. sufficient time to make the change if it becomes necessary."

Warner Bros. got its wish, with Judge Perry declining to set a trial date in August. But a February trial, after the planned DVD release, would require the studio to spend big to remove the tattoo from all the offending Helms scenes. From our recollection, he's got the tattoo in pretty much every scene after the 20-minute mark or so; we don't envy the special effects wizard charged with scrubbing the mark from each frame.

As we've said from the beginning, this case is probably headed for settlement way before trial. To that end, Judge Perry has scheduled a private mediation for June 16. Hopefully both sides can work out a resolution. But if not, might we suggest Warners replace the Tyson tattoo with something from its own library. How about Batman or Bugs Bunny?

Warner Bros. declined to comment.

Mike Tyson Tattoo Artist Sues Warner Bros. to Stop Release of 'Hangover II'

Email: Matthew.Belloni@thr.com
Twitter: @THRMattBelloni