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.

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Companies: warner bros.

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

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Craig (profile) says:

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.

Chronno S. Trigger (profile) says:

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.

Trails (profile) says:

Re: 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.

Anonymous Coward says:

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!

Chosen Reject (profile) says:

Re: 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.

Anonymous Coward says:

Re: 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?

Anonymous Coward says:

Re: 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.

newsgrist (profile) says:


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.

newsgrist (profile) says:

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)–>

Not to mention this—>

and this–>

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