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'Hangover II' Injunction Denied, but Tattoo Dispute Goes Forward

On Thursday, the blockbuster sequel "The Hangover Part II" opened in theaters around the world as planned, despite the efforts of artist Victor Whitmill. As discussed here previously, Whitmill filed a copyright infringement lawsuit against Warner Bros. alleging that he owns the rights to the well-known "Mike Tyson tattoo" and that it cannot be reproduced on anyone's body other than Mike Tyson without his permission. In "Hangover II," Ed Helms' character wakes up to find what appears to be the Tyson tattoo inked on his face.

In his lawsuit, Whitmill sought damages and an injunction on the Memorial Day weekend release of "Hangover II." In a ruling on Tuesday, U.S. District Court Judge Catherine Perry held that while she would not grant an injunction, Whitmill did have a "strong likelihood of prevailing on the merits for copyright infringement," Media Decoder reports.

Perry denied the injunction because she found that it was in "the public interest" for the film to go forward. She wrote that thousands of other non-party business people in the country would lose money if the opening was enjoined. She added, however, that Whitmill may get the last laugh, though, because "[a]lthough the intangibles he's losing can't be completely known or quantified, there is some amount of money that will come close."

In a guest post over at the Likelihood of Confusion blog, Matthew David Brozik breaks down the copyright issues, including the defendants' argument that the use of the tattoo was a form of "fair use" known as parody:

The problem is that there is no change to the work in question… only to the canvas, as it were. Perhaps for this reason (in part, anyway), Judge Perry appears not inclined to find fair use. “This was an exact copy,” she said. “It's not a parody …. This use of the tattoo did not comment on the artist's work or have any critical bearing on the original composition. There was no change to this tattoo or any parody of the tattoo itself. Any other facial tattoo would have worked as well to serve the plot device."

Read Brozik's full analysis of the "Hangover II" tattoo dispute here.

Posted by Bruce Carton on May 27, 2011 at 04:34 PM | Permalink | Comments (4)


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