I won’t lie; this summer’s movie schedule has me as giddy as a school girl.  Pop the popcorn and bring a sweater for the theater, because we will be in there awhile!  One of the films in this pantheon of moving pictures that is guaranteed to bring in the bucks is The Hangover: Part 2. If you didn’t see the first one, you really should.  It was an amazing romp through Sin City (my hometown!) and it made me laugh so hard that I cried.  The sequel will hopefully be just as great, but now someone is trying to take it away from us!

S. Victor Whitmill, an award-winning tattoo artist, is asking a federal court in Missouri for an injunction to stop the release of The Hangover: Part 2.  On what grounds?!   Mr. Whitmill was the artist that gave Mike Tyson his infamous facial tattoo.  In the film, Ed Helms mysteriously ends up with a very similar tattoo.   Whitmill alleges that Warner Brothers “copied Mr. Whitmill’s Original Tattoo and placed it on the face of another actor. . .[which] constitutes copyright infringement.”

There is no doubt that the tattoo is copyrighted, as Matthew Belloni has eloquently pointed out.   Whitmill also has clear ownership of the copyright because Tyson signed the rights over to him.  And while it might be “one of the most distinctive tattoos in the nation,” as Whitmill alleges, is this lawsuit just an attempt to get a settlement out of Warner Brothers?  There are a few factors that I think will be really important as to how this case will proceed:

• I have to get this off my chest.  It is “one of the most distinctive tattoos in the nation” because it is ON THE FACE OF MIKE TYSON!  This design is not famous for any other reason than that.  Fame is always a wild card in cases like this.  It makes parody a much more legitimate argument.
• Whitman says that he and Mr. Tyson agreed that Whitman would own the artwork.  Does that mean that Tyson originally drew the work, making him the original owner?  An agreement would not be needed if Whitman was the creator of the work.  If Whitman did not create the work and Tyson transferred the rights to him, was there a proper notice of transfer registered with the Copyright Office?
• The designs are not exactly the same.  There are clearly similar elements between the two tattoos though.  Tyson appeared in the first movie too, which makes the similarities seem less like a coincidence.
• The tattoos appear to fall into the vein of “tribal tattoos,” which all share similar elements.  Since you can’t copyright a style, this might be a battle of similar style v. inspired copy v. total concept and feel.
• Fair Use!  I think Warner Brothers could have a very good parody argument here.  What is a bigger parody than trying to make Ed Helms look like Mike Tyson?  On top of that, there are a number of other fair use trains that Warner Brothers could take.
• How much does Warner Brothers want this behind them?  The movie is set to premiere on May 26^th (less than a month from now).  I anticipate that Warner Brothers may choose to settle this lawsuit and not risk the opportunity to make a whole bunch of money with this movie.

There are obviously a number of other factors, but I think these will play a big part.  I have a feeling this case will be settled just to make sure the movie premieres on time.  Imagine the marketing disaster that would exist if all of the movie posters were wrong.  That being said, as with many cases, I would love to see this one go to trial.  You would have to put Iron Mike on the stand.  It could be more entertaining than the movie.

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