'Hangover 2' Wins a Legal Battle But Will Tattoo Artist Win the War?

A federal judge won't delay the sequel's release, but expresses sympathy for the plaintiff

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Good news for Zach Galifianakis fans. Dude comedy The Hangover 2 will be released on schedule this week following a ruling by a St. Louis federal judge. The release of the film was in limbo following a lawsuit by Mike Tyson's tattoo artist, who argued that the identical face tattoo on actor Ed Helm in the movie constituted copyright infringement. Despite the go-ahead on the film, tattoo artist S. Victor Whitmill is walking away smiling from the ruling, as U.S. district judge Catherine Perry suggested that his case was strong. "Most of the defendant's arguments against this are just silly. Of course tattoos can be copyrighted," she said.

In a statement, Warner Bros. also played the ruling off as a victory. "We are very gratified by the Court's decision which will allow the highly anticipated film, 'The Hangover Part II' to be released on schedule this week around the world," read the statement. "Plaintiff's failed attempt to enjoin the film in order to try and extract a massive settlement payment from Warner Bros. was highly inappropriate and unwarranted."

Looking into the case, Joe Mullin at Paid Content is surprised by Perry's seemingly sympathetic posture toward the plaintiff:

The most extraordinary part of Perry’s finding is that “there was no parody or transformative use.” To me, it’s frankly unbelievable that someone couldn’t at least see the possibility of some humorous mocking in the idea of Ed Helms’ cowering, wimpy character (pictured at left) bearing the same tribal facial tattoo that Mike Tyson sports. (And frankly, a tribal facial tattoo looks kind of ridiculous on anyone… including, yes, Mike Tyson.)

Perry also noted that “the entire tattoo in its original form was used (not in any parody form), the tattoo was not necessary to the basic plot of the movie, and that Warner Brothers used the tattoo substantially in its marketing of the movie.” And Perry found that Whitmill’s “loss of control over his design” could be seen as an “irreparable harm,” which is a way of saying he might get an injunction farther down the line.

Overall, this is a surprisingly strong reaction in favor of the plaintiff.

According to Whitmill's lawyers, "This case is not about Mike Tyson, Mike Tyson's likeness, or Mike Tyson's right to use or control his identity," the suit reads. "This case is about Warner Bros. appropriation of Mr. Whitmill's art and Warner Bros. unauthorized use of that art, separate and apart from Mr. Tyson." That's an argument Salon's Drew Grant is skeptical of. "If Tyson willingly agreed to be in the movie, and the tattoo on Helms' face is a reference to Tyson's character, then is it actually 'separate and apart' from Tyson's image?" Looks like this'll be a protracted battle.

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