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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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61.

Moose Thompson    

The fair use defense is still available even when the use is purely commercial. There is ample case law on the subject. The key is that you take just enough to conjure up the original for the audience. The SCOTUS ruled that this can include the "heart of the original" if necessary.

Here, the movie had to closely copy Tyson's tattoo in order for the audience to recognize the parody. A different face tattoo would not have had the same impact. Tyson was in the first movie...Ed Helms' character had major face trauma in the first movie...in the second movie the tattoo is a reference to both of those from the original.

Anything can happen, but I think the final outcome will be fair use of copyright. (If the tattoo is even copyrighted)

1210 days ago
62.

machsnell    

Hasn't anyone bothered to point out to the artist or attorney, that this tattoo is a rip off of the Maori culture? Can you copyright a tattoo that is part of a tribe's culture? I bet there is a Maori man out there right now who has a similar design on his face.

1210 days ago
63.

AYODEJI ODEBIYI    

Come to look at it,i believe Mike Tyson owns the tattoo cos he paid for it, and that means it belongs to Tyson. So if anyone is sueing, it's got to be tyson.

1210 days ago
64.

John    

Parody is not in play. Just because the tattoo is funny because he got it drunk on his wedding night does not make it parody.

You can't parody a image like you can a script or a book. They done nothing to make the image itself a parody. When your looking at this you have to take away all the actors script etc and only focus on the copyrighted part and was it parodied.. no it wasn't maybe if they stuck some boobs on it or a tat next to it saying "I stole this from Tyson" as it sits its a copy of something that's copyrighted.

1210 days ago
65.

John    

@Ayodeji no he does not own it. Just like if you bought a print from a famous artist or a nobody on the street. If they have copyright on it then you can not reporduce it for anything other than fair use.

Same with media like CD's. If you buy a CD you do not own the rights to the music and you can not legally use it to make or help make money from it. Thats why Bar's Club's sports events etc have to pay royalties on the music they use. You can't buy the CD then put it in your TV show and not expect to get sued.


I guess people hear TMZ use Parody all the time and then forget all the stories TMZ puts out about real copyright issues.

1210 days ago
66.

John    

@machsnell yes you can if its not a copy of their copyrighted work or you take it and change it to the point its your own work then yeah. Where that line is well.... thats the 10000000 dollar question but in this case there isn't any change.

1210 days ago
67.

Moose Thompson    

@John: Don't you think there's an argument to be made that the parody is of Tyson's ridiculous decision to get a terrible face tattoo?

I don't know, I think there is a case for parody. I'm interested to see how it plays out in courts.

1210 days ago
68.

Al Brown    

The court decision siding with 2LiveCrew on the right to parody copyrighted material should apply to this.

1210 days ago
69.

NZMaori    

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The Tattoo Artist assuming he has the intellectual right to claim the design form of an indigenous culture that is not his is insufferably arrogant. The tattooist originally copied the design from the indigenous New Zealand Maori.

Bit rich to be claiming someone else stole 'his' design when he obviously copied the design from somewhere else in the first place. He never got their consent to copy it! Maybe we should sue him??
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1210 days ago
70.

IrishDevil85    

I don't think there's a valid case. I do know this. I played Final Fantasy 8 as a teenager and so when I saw his face first thing I thought of was the retarded fist fighting character of the game ( http://www.google.com/imgres?imgurl=http://www.cosplayisland.com/files/costumes/2901/24403/8-zell-c.jpg&imgrefurl=http://www.cosplayisland.com/costume/view/24403&h=700&w=450&sz=51&tbnid=KXrlT8KjYr5tKM:&tbnh=280&tbnw=180&prev=/search%3Fq%3Dzell%2BDincht%26tbm%3Disch%26tbo%3Du&zoom=1&q=zell+Dincht&usg=__1H3eAAY3ajUOzSYI5WyGjEL52mU=&sa=X&ei=zYzcTYy6MciutwenmMXMDw&ved=0CBoQ9QEwAA ) Clearly he's not the first person to consider facial tribal designs.

Also...the proportions are wrong. You can clearly see where the lines don't match up in comparison to the other. H2's design- the top lines are close in length, where as Tyson's has a dramatic length difference. Tyson's curves on his are also more defined. All in all I think it's a BS case where a person wants attention/big pay day. Dude-sir also needs a bit of a sense of humor obvious.

1210 days ago
71.

john    

1. It's a parody.
2. If it was a nike logo, no one would say a thing.
3. If it was a Harley Davidson logo, Harley would not care. They would revel in the massive free publicity.
4. To be copyrighted, you have to display the copyright symbol wherever it is displayed to be valid. That is why you see an ™ or ® or a © on every corporate logo in the world. I don't see a copyright symbol on Mikes face.

1210 days ago
72.

jason    

if the artist created the design of the tattoo then he deserves some sort of entitlement simply because its his work and they never asked. however, "[...] a permanent injunction preventing further distribution of the movie," that is going too far.

1209 days ago
73.

Nick    

While I'm no lawyer I would doubt there is much of a case here. Clearly the artist has a copyright, or so he claims. And I'm ok with that part. However, I do believe he failed to properly protect his image. He, as previously stated above, never indicated, publically, the image was copyrighted. Which could have easily been done with one of the symbols.

Obviously he wanted to retain ownership so that he may continue to use the image for other clients and Tyson would not be able to sue him. Also, he most likely has sold this image to other artists for a fee. I doubt very much that he distributes these on a royalty basis where a pays a fee each time the image is used. Good luck tracking it. I think the court should mirror a settlement, if any, off of how he has himself chosen to distribute the symbol.....which clearly is not original. They're called tribal tattoos for a reason as they are/were a cultural icon. Honestly, I think giving this guy a penny more than what he has himself earned by tattooing that same image onto other clients and the fees he has collected for selling it to other artists would be unjust. He's been paid. He didn't have a problem when tyson has been in magazines or on the news and the image wasn't blurred out. Why now? I think if you're going to claim copyright you have to do it equally across the board...not when a movie studio goes and turns it into a joke in their movie and really makes the image famous. Plus, all this is going to do is make more retarded people go get this **** done on their face because now it is really famous/funny. The studio did this prick a favor.

1209 days ago
74.

Chuck    

The MPAA and RIAA can sue Joe Nobodies for 10 million dollars because they downloaded 10 tracks online, but when the makers of Hangover 2 get sued over a tattoo all of the sudden everyone wants to DEFEND the movie makers? Are you guys insane? This is exactly the same s*** they pull, and its about time it came around to bite them.

1206 days ago
75.

Nick    

Atleast for myself...I see the tattoo artist as the MPAA or RIAA. Not trying to defend the the production company. I just don't feel he's really been wronged here. A frivilous lawsuit if you will. His image isn't wholly original (conceptually...its tribal and was itself probably traced straight out of a book) itself and has never been publically displayed as copywritten or otherwise. And the image used in the Hangover, while very close, isn't exact.

1203 days ago
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