May 23, 2011 8:45am PT by Eriq Gardner
Warner Bros. Asks Judge Not to Stop 'Hangover II' Release Over Mike Tyson Tattoo
The battle between Warner Bros and Mike Tyson's tattoo artist is heating up. On Friday, the studio told a judge why S. Victor Whitmill, who is suing over a copyrighted tattoo on Ed Helms' face in Hangover Part II, shouldn't be able to stop distribution of the film. The highly anticipated sequel is scheduled to be released this week ,so a decision should be forthcoming soon.
In its brief, Warner Bros. says Whitmill will not be able to succeed on the merits of his claims that Hangover II constitutes copyright infringement of what the he calls "one of the most distinctive tattoos in the nation."
"The very copyrightability of tattoos is a novel issue," says the Warner Bros. brief. "There is no legal precedent for Plaintiff's radical claim that he is entitled, under the Copyright Act, to control the use of a tattoo that he created on the face of another human being."
Warner Bros. says that Tyson's tattoo is ubiquitous and that he appeared in the first Hangover movie without objection from Whitmill.
The studio raises a host of defenses for why the tattoo on Helms' face is legitimate, including that it is a fair use parody, that it is permitted by Tyson's implied license as a result of (Spoiler Alert) appearing in the film, and that the plaintiff is estopped from asserting a claim because of a failure to object to use of the tattoo in the first film.
Regardless of the merits of the case, the studio says that an injunction would wreak havoc on both itself and others, including more than 3,600 theaters that will be releasing Hangover II. Warner Bros. says it has spent millions on advertising and promotion already and that theaters have already been selling advance tickets for weeks -- with nothing to replace it with over the critical Memorial Day weekend.
Moreover, Warner Bros says that given the large number of copies already circulating, it would be a "virtual certainty" that if the movie is enjoined, Hangover II will be leaked and pirated, destroying the value of the film.
Warner Bros says that unless Whitmill puts up a $100 million bond, the losses will be unrecoverable.
The tattoo case has inspired the imagination of copyright lawyers and other observers throughout the nation. On one hand, the tattoo is unquestionably an original piece of artwork and there's nothing in copyright law that explicitly forbids tattoos from becoming one's intellectual property. On the other hand, as Rachel Valadez at Greenberg Glusker points out, it's illegal to sell human organs, and a contract giving Whitmill property rights to Tyson’s skin may be invalid.
This could be one of the reasons why there was no lawsuit over the first film. One question could be, if Whitmill's contract over the Tyson tattoo holds up to legal scrutiny, is the Helms tattoo an unlicensed derivative of the Tyson's?
A hearing is scheduled for today in federal court in Missouri.