An Unending Hangover for “The Hangover Part II”

Warner Brothers has met its fair share of IP-related legal battles in connection with 2011’s popular hit movie, The Hangover Part II.

The first assault came before the film was even released. In April 2011, the artist who designed Mike Tyson’s famous face tattoo attempted to block release of the film, claiming that a replica of the tattoo was used in the film without the artist’s permission.

The Copyright Action and the Tyson Tattoo
In a complaint filed in the Eastern District of Missouri, Plaintiff S. Victor Whitmill claimed that character Stu Price, played by actor Ed Helms, sported a “virtually exact reproduction” of Tyson’s tattoo without Whitmill’s authorization. Whitmill alleged that “[t]he Pirated Tattoo is a recurring device and plays an important role in the plot of the Movie.”  A side-by-side comparison of Tyson’s tattoo and the alleged replica is here.

Whitmill sought to block release of the film with a preliminary injunction. Interestingly, Whitmill did not register the copyright for the original tattoo until April 19, 2011.  In its opposition to Whitmill’s preliminary injunction motion, Warner Brothers noted that Whitmill’s registration of the Tyson tattoo came long after Tyson (and, in turn, his tattoo) had appeared in the original Hangover movie, and in the midst of the Hangover II’s marketing campaign (which included materials showing Helms’ tattoo).

The case raised the novel issue of whether a tattoo is enforceable as a copyright.  Warner Brothers argued that extending copyright protection to a tattoo created on a human being – with human flesh acting as the “medium of expression” required  under copyright law  – “would lead to troubling and unintended results under the Copyright Act.”  First, Warner Brothers argued that if a tattoo was considered a copyrightable work and gained “recognized stature” under the Copyright Act, a court could enjoin the tattoo holder from ever removing it.  Second, to the extent that the tattoo holder wished to alter the tattoo in any way, such alteration would be in violation of the artist’s exclusive right to prepare derivative works, and the artist could obtain a court order requiring the offending work be destroyed (i.e. the tattoo removed).  Finally, any publication of the person sporting the tattoo would be in violation of the artist’s display right under the statute: the publisher would be on the hook for infringement, and the tattoo holder would be considered a contributory infringer.  David Nimmer, author of the frequently-cited “Nimmer on Copyrights,” supported Warner Brothers’ argument as an expert witness, submitting a lengthy declaration  in which he admits to changing his previous position on the issue.

 On May 24, just two days before the film’s scheduled opening, U.S. District Judge Catherine D. Perry denied Whitmill’s motion for a preliminary injunction based on the financial hardship it would cause Warner Brothers.  However, Judge Perry was outwardly skeptical of Warner Brothers’ defenses, referring to them as “silly.”  Judge Perry stated her position that tattoos are indeed copyrightable:

Of course tattoos can be copyrighted . . . I don’t think there is any reasonable dispute about that. They are not copyrighting Mr. Tyson’s face, or restricting Mr. Tyson’s use of his own face, as the defendant argues, or saying that someone who has a tattoo can’t remove the tattoo or change it, but the tattoo itself and the design itself can be copyrighted, and I think it’s entirely consistent with the copyright law.

Having reached a settlement (the terms of which were obviously confidential), the parties filed a joint motion to dismiss the case in June.  The issue of whether a tattoo is copyrightable is apparently tabled for the time being.  But who knew a movie about debauchery in Thailand could spurn such an interesting debate about copyright law?

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Posted on February 3, 2012, in Copyright. Bookmark the permalink. Comments Off on An Unending Hangover for “The Hangover Part II”.

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