Judge: Hangover 2 Can Still Be Released; But Tattoo Artist May Prevail In The End

from the fair-use-is-dead dept

About a month ago, we wrote about tattoo artist S. Victor Whitmill suing Warner Bros. for violating his copyright on the tattoo on Mike Tyson's face, since a similar tattoo is used on Ed Helms' face in the movie (Tyson also appears in the movie, but I guess that use is somehow "licensed"). There was some attention paid to the fact that Warner Bros. made a "fair use" claim in its response to the lawsuit, but the entertainment industry regularly claims fair use, so that didn't seem all that odd or surprising. The key early question was whether or not the judge would issue an injunction, halting the release of the movie this week, which would have cost Warner Bros. a ridiculous amount of money considering all of the marketing going into the release.

Thankfully, the judge has denied the request for an injunction, meaning that the movie will still be released. However, she does note that Whitmill has "a strong likelihood of ultimately succeeding on the merits of the case." I find that to be a bit troubling as well, but we'll see how the case goes. Of course, if you accept that fair use is not a right, but just a defense, it is possible to see how Whitmill may succeed in showing infringement, while Warner Bros. could still win with a fair use defense. Still, the whole thing seems pretty ridiculous. If Whitmill still wins, he could receive a large chunk of money in an award and could still get an injunction for future releases (DVD, cable, etc.). Over a parody tattoo.

Of course, there's a clear element of Warner Bros., a leading proponent of stricter copyright enforcement, being hoisted on its own petard, in this case, but it seems unlikely that anyone at Warner Bros. has the self-awareness necessary to recognize that its own constant refrain about the importance of "protecting" copyright is part of what now puts it in this position.


Reader Comments (rss)

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  •  
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    Craig (profile), May 24th, 2011 @ 11:33am

    Isn't it ironic, don't you think?

    If only Alanis had this story in her head when she wrote her song.

    I'm sure WB is so big that the left hand doesn't know what the right hand is doing, and WB's legal department comes up with the crap they do to ensure their long-term survival.

    If only the petards were some of the ignorant politicians and media writers whose lip service supports the big entertainment cause, we would be getting somewhere.

     

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      :Lobo Santo (profile), May 24th, 2011 @ 12:42pm

      Re: Isn't it ironic, don't you think?

      "If only the petards were some of the ignorant politicians and media writers whose lip service supports the big entertainment cause, we would be getting somewhere.


      The word you were looking for there to describe politicians is "retards".

       

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        Zach Mollett (profile), May 24th, 2011 @ 12:46pm

        Re: Re: Isn't it ironic, don't you think?

        Unless he meant that they were violent wind-breakers.

         

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          Chronno S. Trigger (profile), May 24th, 2011 @ 12:55pm

          Re: Re: Re: Isn't it ironic, don't you think?

          Petard: N, a small bomb used to blow up gates and walls when breaching fortifications.

          If by "small bomb" you mean politicians, "gates and walls" you mean the Constitution, and "fortifications" you mean the US; then yes, I can see it. I've seen less legitimate reasons to repurpose a word.

           

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            Zach Mollett (profile), May 24th, 2011 @ 12:59pm

            Re: Re: Re: Re: Isn't it ironic, don't you think?

            I was referring to the origin:
            15901600; < Middle French, equivalent to pet ( er ) to break wind (derivative of pet < Latin pēditum a breaking wind, orig. neuter of past participle of pēdere to break wind) + -ard -ard

             

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              Chronno S. Trigger (profile), May 24th, 2011 @ 1:04pm

              Re: Re: Re: Re: Re: Isn't it ironic, don't you think?

              That fits better. Damn petards.

               

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              Anonymous Coward, May 24th, 2011 @ 6:42pm

              Re: Re: Re: Re: Re: Isn't it ironic, don't you think?

              Wow. For years I was thinking petards were like...leggings, or stockings. So if you were hoisted on your own petard it was akin to an Atomic Wedgie, on a hook...something like that.

              Thanks for the intights, er insights. ;)

               

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                Niall (profile), May 25th, 2011 @ 6:16am

                Re: Re: Re: Re: Re: Re: Isn't it ironic, don't you think?

                No, you hung a bomb on a wall to blow it up/break it down. Being 'hoist' by it simply meant that for whatever reason, it blew you up as well/instead. In other words, an action you instigated blows up in your face.

                 

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    Hephaestus (profile), May 24th, 2011 @ 11:53am

    The guy mades a slight change in Chakotay's Tattoo from star trek voyager and claims copyright. I wonder what mike tyson would do to him if he ever figured out he had been punked by a sci fi geek ....

     

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      el_segfaulto (profile), May 24th, 2011 @ 12:30pm

      Re:

      You'd have to find a judge willing to watch Voyager...a show that even most hardcore scifi geeks would prefer to wipe from their collective consciousness.

       

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        Trails (profile), May 24th, 2011 @ 12:38pm

        Re: Re:

        What is this voyager you speak of? I try to recall it, and for a moment, just a moment, I have an impression of a woman's exceptionally nasal and grating voice, and then the phrase "they tried to save it with Jerry's tits" pops into my head, but then it's gone, like waking up and trying to remember a dream, or perhaps a nightmare, and I am left with only a vague sense of disquiet.

         

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      barducho, May 24th, 2011 @ 2:59pm

      Response to: Hephaestus on May 24th, 2011 @ 11:53am

      Tysons neo-tribal face piece is nothing like that of the maori based tribal they put on that star trek fella. Just wanted to put that out there.

       

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    Chronno S. Trigger (profile), May 24th, 2011 @ 12:33pm

    Copyright?

    I guess since this has been going on for a month now that the artist filed for a copyright before the first movie came out?

     

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    jupiterkansas (profile), May 24th, 2011 @ 12:37pm

    Warners will just pay the guy off with a bucket of money and claim they've done nothing wrong, then go back to hunting for pirates. It's all so stupid.

     

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      Anonymous Coward, May 24th, 2011 @ 2:01pm

      Re:

      Yep too bad too. Warner Communications owns MAD Magazine whose lawyers won the case that allows Parody songs in the Supreme Court way back in the day.

       

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    Anonymous Coward, May 24th, 2011 @ 12:52pm

    Tyson's very simple tribal tattoo is so original and complex...I mean it must have taken minutes to design.

     

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    Anonymous Coward, May 24th, 2011 @ 1:02pm

    But, but - Piracy!

    I hope the judge rules that the tattoo is covered by copyright - how else will any tattoo artist ever be motivated to perform their work if they don't get complete unconditional control over it?

    I'm particularly interested in the shitstorm (legal and possibly physical) that will erupt when the guy who came up with the teardrop prison tattoo learns of this - imagine the reaction of the murderers when they learn they're wearing unlicensed ink!

     

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      Joe Publius (profile), May 24th, 2011 @ 1:23pm

      Re: But, but - Piracy!

      To heck with the teardrop, what about the Mom tatoo? That guy has to be out trillions according to current media industry calculations.

       

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    Anonymous Coward, May 24th, 2011 @ 1:23pm

    Most original tattoos are done as a "work for hire" which means Tyson (who commissioned the work for hire) would own copyright.

     

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      Chosen Reject (profile), May 24th, 2011 @ 2:09pm

      Re:

      Your claim is wrong on so many levels.

      First, in order for it to be a work made for hire, both the tattoo artist and Mike Tyson would need a mutually agreed upon written contract. It is doubtful that this contract exists.

      Secondly, and perhaps most importantly in this case, is that the Tattoo would have to be "for use as a contribution to a collective work, as a part of a motion picture or other audiovisual work, as a translation, as a supplementary work, as a compilation, as an instructional text, as a test, as answer material for a test, or as an atlas". I don't think tattoos would fall under any of those categories.

      Remember, just because you paid someone to create something that is copyrightable, does NOT mean you own the copyright. And because of the categories allowed, even if you do have a contract, still doesn't necessarily mean you own the copyright.

       

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      Anonymous Coward, May 24th, 2011 @ 3:17pm

      Re:

      >Most original tattoos are done as a "work for hire"

      No. Knock it off.

      If you're going to try your hand at armchair lawyerism, try harder. "The thing was done for money" is not the legal definition of "work for hire"

       

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    Anonymous Coward, May 24th, 2011 @ 2:11pm

    Over a parody tattoo.

    Time to review your definitions, Mike. Parody, "humorously exaggerated imitation". Clearly this was a 1:1 copy or a clear attempt to be, as the picture you posted showed.

     

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      Anonymous Coward, May 24th, 2011 @ 2:16pm

      Re:

      Warner did what they don't want others to do. Used someone else's copyrighted work without approval and tried to get away with it. Simple as that. Everyone knew about it going into part 2. As Mike said, it was licensed for use in part 1. This is a clear attempt from Warner to screw the copyright holder out of its fair share.

      Haven't we learned already that the big studios are all greedy whores?

       

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      jackwagon (profile), May 24th, 2011 @ 2:37pm

      Re:

      If the canvas is considered part of the art (and I'm not sure if it is), then Ed Helms could be considered a humorous exaggeration of Mike Tyson.

       

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      Anonymous Coward, May 24th, 2011 @ 2:37pm

      Re:

      That's not really an accurate definition of "parody" either as far as copyright is concerned.

      Your conclusions is right, though. I see no reason why that tattoo would be considered "parody" under any definition.

       

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        FUDbuster (profile), May 24th, 2011 @ 11:06pm

        Re: Re:

        I see no reason why that tattoo would be considered "parody" under any definition.

        Really? My first thought was that this was an obvious parody and fair use.

         

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          Anonymous Coward, May 25th, 2011 @ 11:34am

          Re: Re: Re:

          I don't think it's a work designed to mock/criticize the original (a la 2LiveCrew's "Big Hairy Woman" mocking the strait-laced nature of Roy Orbison's "Pretty Woman").

          Rather, it just seems to be a joke that Ed Helms got a Mike Tyson face tattoo before his wedding.

          I guess you could argue that his freakout shows the ridiculousness of getting a face tattoo, and therefore it's a criticism of the original face tattoo, but that doesn't not seem like an obvious slam dunk argument.

           

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            FUDbuster (profile), May 25th, 2011 @ 12:48pm

            Re: Re: Re: Re:

            For me the whole joke is that they're making fun of Tyson and his tattoo by using the tattoo on Helms. It's quintessential parody.

             

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    CommonSense (profile), May 24th, 2011 @ 2:33pm

    The Judge

    Probably heard about all the money the Movie studios can throw around in situations like this, and just said that the guy might win in order to get as big a payday as she could from the now frightened-it-might-lose movie studio...

     

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    Mike, May 24th, 2011 @ 3:06pm

    excellent

    1) Copying Tā moko from Māori
    2) Sue WB
    3)??
    4) profit

     

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    Anonymous Coward, May 24th, 2011 @ 4:37pm

    Or WB could throw the film through a computer and digitally change the tatoo before the release. For a lot less.

     

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    Mike, May 24th, 2011 @ 5:06pm

    http://www.nzherald.co.nz/nz/news/article.cfm?c_id=1&objectid=10727836

    "The tattooist moaning about the breach of copyright copied it off Maori. Bit rich to be claiming someone stole his 'design'."

     

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    newsgrist (profile), May 25th, 2011 @ 6:06am

    hnfph

    re: "1) Copying Tā moko from Māori" - yup. So it could be argued that this guy's tattoo is itself 'not sufficiently original' (a copy, or maybe a 'remix' of Tā moko); I prefer the obvious: 2) the Hangover II use is a clear-cut parody. Parody = protected speech, the best fair use defense there is. Tattooist/gold-digger case: dead in the water. Judge isn't making any sense.

     

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    newsgrist (profile), May 25th, 2011 @ 3:25pm

    tattoo/skateboard art infringing?

    ha. It's notable that this tattoo artist borrows freely from the movie industry's copyrighted imagery - unless it might be deemed fair and non-infringing (I doubt it: skateboards = merch)-->
    http://www.paradoxstudios.com/paradoxstudios.com/Toys_For_Tots.html

    Not to mention this--->
    http://www.paradoxstudios.com/paradoxstudios.com/victor/Pages/airbrush_art.html#9

    an d this-->
    http://www.paradoxstudios.com/paradoxstudios.com/victor/Pages/airbrush_art.html#7

     

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    steve (profile), May 31st, 2011 @ 6:36am

    this is stupid

    i have the same tattoo and i think i had mine before mike did so can i claim aswell.

     

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