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'Hangover 2'

HUGE Victory In Tattoo Lawsuit

5/24/2011 8:27 AM PDT BY TMZ STAFF

Mike Tyson's tattoo artist couldn't K.O. the "Hangover 2" ... TMZ has learned a judge will NOT stop the movie from being released after the two sides battled over the use of the face tat in the flick.

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Warner Bros. released a statement saying, "We are very gratified by the Court’s decision which will allow the highly anticipated film, The Hangover 2, to be released on schedule this week around the world."

The rep continued, "[The tattoo artist's] failed attempt to enjoin H2 in order to try and extract a massive settlement payment from Warner Bros. was highly inappropriate and unwarranted."

As we previously reported, the tattoo artist claims he owns the copyright to Tyson's tat because he created it -- and WB never asked him for permission to use an exact replica of the design on Ed Helms' face in "Hangover 2."

UPDATE: The tattoo artists's attorney tells TMZ they're "disappointed" the motion was denied, but are "pleased by Judge Perry's finding that Mr. Whitmill proved a 'strong likelihood of success' on the merits. We look forward to further vindicating our client's rights at trial .... including a permanent injunction preventing further distribution of the movie."

81 COMMENTS

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46.

dave    

This was so dumb. Regardless of the validity of his claim, there is no way blocking the release of the movie over use of that tattoo is more financially lucrative or viable to him than it is to release the film for THE ENTIRE CREW, THE ENTIRE MARKETING TEAM, THEATER CHAINS, ETC.

This guy is insane.

1163 days ago
47.

John    

First off its not "fair use" if you make money from it... Also Parody will not work with art unless they change the art not the medium..


The man designed it and like most good artists including tattoo they hold the copyright. Thats why they charge small amounts for "flash" so other artists can use it and mod it to their liking.

The only way Mike would own it is if he deigned it but he didn't he went to a artist who drew it up.

Its the Same reason I can't steal Coke or Pepsi's logo and make it a stable in my movie.. Its why on TV and Movies they change labels or cover/blur them out. What the hell is Copyright good for if someone can STEAL..

Only reason he lost the motion is the study has better lawyers. They won't win in the end and they know it and should have just settled.

1163 days ago
48.

John    

@TheBrain doesn't work like that. You pay a flat fee to have the art on your skin forever. Discounts for advertising don't work that way in tattoo or in real art.

1163 days ago
49.

TheBrain    

Dave, he was just doing that to threaten the film company. He does not really want to stop the film from being distributed, he just wanted to force a large settlement.
The movie producers could not have afforded to wait for the trial to conclude before they distributed their film. If the judge did not allow them to distribute the film before the trial they would have been forced to settle for a huge amount.
I'm on the side of the movie producers on this one. This is a first so how the hell would they know the tattoo was trademarked? This just all seems very hinky to me. I really hope this artist gets nothing. And I hope Warner Brothers looks into how many Micky Mouse tattoo's this guy has done over the years and sues his ass of for TM infringement on those.

1163 days ago
50.

TheBrain    

The easiest solution would be to just go back and make a CGI change to the tattoo so it is different enough to not be a TM infringement. The change would just be in the scenes in which the whole tattoo shows.
That's what I would do and it totally gets rid of this lawsuit.

1163 days ago
51.

KushFader    

Parody, fair use.

REF: All of Weird Al's music. Or "Scary Movie" or "Life of Brian" by Monty Python and on and on. They are using this in a parody way, imitating Mike Tyson. The tatoo is iconic BECAUSE of Mike Tyson, if it were on a "common person" then it would be a different situation because the tattoo isn't associated with a famous person and so what's the paradoy? It would be a harder case to argue, again Tyson is a "famous celebrity" that is in the public eye from time to time and as such are not as protected as everyone else (i.e. right to privacy with the paps etc).

This is a bottom line shakedown for money and the attempt to hold up the movie was an example of this. It is also now an issue for Mike Tyson because do you think that he will get any more, even momentary bits of time of TV if they have to pay this other guy a royalty? This would have a wide sweeping impact for any actor or actress that has a tatto with potentially similiar clauses they might not be aware of (i.e. Megan Fox or the countless others that have it and have been in movies showing the tats. This is where a good judge is cautious on setting a new precident in case law that can impact a whole wide range of items and where appeals are helpful.

1163 days ago
52.

Travis     

I'm sure the tattoo artist has getting more business since of the stupid lawsuit. He's getting paid either way. Greedy bastard!

1163 days ago
53.

grin52475    

Warner Brothers is going to make a fortune off this movie and they should have had their legal team work this out ahead of time. Parody or not the artist has this tattoo copyrighted and it was used without his knowledge or consent. Warner Brothers probably didn't realize it or thought they could skate by. They won in the fact that the judge is allowing the movie to be released but I bet they are going to end up sharing some of their wealth with the tattoo artist. I don't think it's over yet.

1163 days ago
54.

NelsonH    

The artist can't win. It's being used in a comedy work as a parody. The Hangover people are not trying to pass it off as an original, it's clearly being used as a goof. The only thing the artist will receive out of this lawsuit is a mountain of legal bills.

1163 days ago
55.

cjs    

Duh, "an exact replica" it is NOT "an exact replica" all you have to do is look at it.

Silly!

1163 days ago
56.

Bobblo    

KushFader has the best point of anyone so far. Precedent. What happens if this f***hole wins? Suddenly anybody with a tattoo has to be careful to cover it up when they appear in the media, else pay royalties or be sued? That's bullocks.

That aside, parody is another strong argument.

As far as "making money from it" goes, I don't see Mike Tyson's tattoo drawing in a significant amount more than Mike Tyson and a tattoo. Really, the difference it makes or doesn't make can't be calculated in any case.

1163 days ago
57.

SJ    

He does hold a valid copyright on the design (it was registered with the US Copyright Office.) If Warner raised the affirmative defense of parody (as exceptional use under sec. 107 of Title 17 U.S.C. outlining fair use) it should fall under compulsory licensing. Which means that a copyright holder cannot enjoin the use of the work BUT is entitled to compensation for the use. In this instance since the film will be/was released, he would essentially be entitled to a share of the profits from the film which entails a long process to make determinations regarding the pro rata IP valuation regarding his contribution to the films profits (which is a process of a bunch of expert testimony resulting in a best guess that everyone involved can live with.)

Keep in mind that copyright is by virtue very rigid (the founding fathers incorporated it into the US Constitution for a reason.)

As to the likeness of the work, it doesn't have to be exact. In general we look for indicia that it more likely reflects the work than not. Which brings in the realm of things surrounding it. Here we have Tyson in the films and thus it is obvious that the work is attributable to his presence and is thus irrefutable as the design held by the copyright holder. Also we would need to look at the amount of screen duration that the design is present (again that expert testimony resulting best guesses as to the actual impact of use of the design - is it a BIG gag running throughout most of the film?)

The bottom line here is that the trial court got it half right. He should not be able to enjoin the release of the film (hell why should he want to - the better it does the bigger his pay day) but he is entitled to compensation as a reult.

And Tyson does not own the design. It the same as if he wore an Everlast hoodie - he wouldn't own Everlast OR the design which is certainly copyrighted and trademarked by Everlast.

This is why entertainment oriented copyright attorneys make between $500 and $750 an hour on average. I hear patent attorneys on the other hand start out at about $1500 an hour on the other hand.

1163 days ago
58.

en Todo Momento!!    

don't people copy tattoos all the time, when they see someone else with them? i wonder how many other people got a tattoo like that one in their face? he should try and sue all of them, too, while he's at it.

1163 days ago
59.

en Todo Momento!!    

the inventor of the 'trampstamp' or 'biceptribal' is about to file claims in billions of dollars in that case...

1163 days ago
60.

Brian    

so according to most of the posts in here i can walk into the movie theater, record this movie on my camcorder but leave out the last 3 seconds of the rolling credits and then upload it on the internet and the movie studio cant do anything about it because its not an exact copy of the movie

Love how movie studios file billion dollar lawsuits against thousands of people when they torrent the studios movie claiming loss of profit etc etc, but the movie studio can rip off ideas - art from who ever they want.

1163 days ago
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