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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  1. icon
    Craig (profile), 24 May 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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