Guest blogger Matthew David Brozik
That was close! The release of The Hangover Part II was in danger of being enjoined by a federal judge… but, for better or worse, the Honorable Catherine D. Perry of the U.S. District Court for the Eastern District of Missouri on Tuesday denied the request for a preliminary injunction made by the tattoo artist who in 2003 gave Mike Tyson his… let’s say impressive facial ink.
The tattoo artist, S. Victor Whitmill, has sued Warner Brothers Entertainment, the studio responsible (if that’s the word we want) for The Hangover Part II (and the original The Hangover) for copyright infringement. Specifically, Mr. Whitmill claims that reproduction of the tattoo (that he gave Mike Tyson) on the face of the character in the new movie played by Ed Helms (and also use of Helms’s likeness, with tattoo, on promotional merchandise) infringes upon his, Mr. Whitmill’s, exclusive rights in the work (the tattoo). Mr. Whitmill moved the court to enjoin the release of the movie, scheduled to open nationwide on May 26, the biggest movie-opening weekend of the year.
Nota bene: Unfortunately, while the short form order denying Mr. Whitmill’s motion is available through PACER, the transcript of the bench order is not (as of this writing)… so I’m gleaning some things from the New York Times article that appeared yesterday.
These are the facts one needs to know to understand what’s going on here:
- “Iron” Mike Tyson was a boxer, and an especially successful one. In 2003, he got a really cool, really big tattoo on his face. It looks like this.
- The Hangover is a movie about three men who have a really, really weird night, followed by a really, really weird day.
- One of the characters in The Hangover is a milquetoast dentist. His name is Stu, and he is played by Ed Helms.
- Mike Tyson appears in The Hangover, playing himself.
- In The Hangover Part II, from what one can see in the trailers and other publicity material, Stu gets a tattoo exactly like the one that Mike Tyson has. Check it out.
The immediately interesting thing about the denial of the motion is that, at least according to the Times summary, Judge Perry—despite finding that Whitmill was likely to succeed in his claim on the merits, because there really can be no question that (a) Whitmill owns the copyright in the tattoo, and (b) Warner Bros. copied it without his permission or the benefit of an exception to Whitmill’s exclusive rights—found that the public interest (one of the factors to be considered on a motion for preliminary injunction) in letting the movie be released outweighed the harm to Mr. Whitmill that might result from denying him the injunction.
As reported by the Times:
“The public interest does favor protecting the thousands of other business people in the country as well as Warner Brothers, and not causing those nonparties to lose money, and I think it would be significant, and I think it would be disruptive,” Judge Perry said from the bench, rather than issuing a written ruling.
“I think that tilts the public interest in favor of Warner Brothers on this because all over the country people would be losing money if I were to enjoin this movie.”
If this writer may offer an opinion: What? Really? Can the release of a movie ever be in the public interest? It’s a movie. I love movies, but… it’s a movie!
Now, Judge Perry does seem to have told everyone involved that, at the end of the day, Whitmill is going to recover from Warner Bros. “Although the intangibles he’s losing can’t be completely known or quantified, there is some amount of money that will come close,” she said.
A note about those intangibles, since Judge Perry mentioned them: Whitmill is claiming not just copyright infringement, but also libel (although that might not be what he means, exactly), because the person from whom the character Stu gets his Tyson tattoo in Part II is a shady character, and Whitmill argues that he might be harmed in his reputation if moviegoers assume that the tattoo artist in the movie shares a personality with the real tattoo artist. This is not a compelling argument, probably… but it is something that might have persuaded Judge Perry to enjoin the film if she had been on the fence. Garden-variety copyright infringement, so to speak, can often be compensated for with just money… whereas harm to one’s reputation often can not be.
But back to the tattoo. Read More…