Three weeks ago, the man who gave Mike Tyson his infamous, er, iconic face tattoo had filed suit against the producers of The Hangover II, asking for an injunction to stop the film’s release, scheduled for this Thursday. The original complaint read in part:
“When Mr. [S. Victor] Whitmill created the Original Tattoo, Mr Tyson agreed that Mr. Whitmill would own the artwork and thus, the copyright in the Original Tattoo,” argues the complaint. “Warner Bros. Entertainment, Inc. — without attempting to contact Mr. Whitmill, obtain his permission, or credit his creation — has copied Mr. Whitmill’s Original Tattoo and placed it on the face of another actor … This unauthorized exploitation of the Original Tattoo constitutes copyright infringement.”
Now you’ll never believe this next part, but it seems a multi-billion dollar corporation can afford better lawyers than a guy who makes his living giving tribal face tattoos.
A St. Louis judge just ruled against Mike Tyson’s tattoo artist’s request for an injunction, allowing The Hangover 2 to be released as scheduled on Thursday. [Deadline]
The case, however, isn’t over, this just means the judge won’t block the release. (If they resolved these things quickly, the lawyers couldn’t get paid so much). Whitmill is still asking for $30 million in damages, and the judge even said he had a “strong likelihood of ultimately succeeding.”
U.S. District Court Judge Catherine D. Perry did say that Whitmill had a strong likelihood of ultimately succeeding on the merits of the case but that the hardship on the studio and the third-party theater owners who planned to screen the film this weekend would simply be too great.
She also said she was willing to hold an expedited trial on the issue of liability and consider a request for a permanent injunction, which could stop the film’s distribution (on DVD, cable and other outlets) at a later date.
Now, without the leverage of a possible injunction hanging over the studio’s head, the tattoo artist is unlikely to be offered a fraction of that to settle the case. But the litigation is still alive and will now proceed as a straight infringement action, with Whitmill required to first show that he has a valid copyright in the image and that the one depicted in Hangover 2 is substantially similar. [THR Esquire]
Meanwhile, Warner Brothers’ defense claims fair use, which is pretty godd*mned ironic coming from a company who will shut down your YouTube account for using two seconds of one of their movies in a mash-up about a movie cliché. Hypothetically speaking, of course.