A little over one month ago, I wrote a small piece on a copyright infringement suit brought by a tattoo artist against Warner Brothers Entertainment.  The artist owns the copyright for the tattoo that currently adorns Mike Tyson’s face.  He attempted to prevent the Warner Bros. from showing the tattoo in the film The Hangover: Part II, which would have most likely resulted in the film’s release being delayed.  The injunction was denied, however, and the movie has made over $350 million to date.

The case has continued and last week Federal District Court Judge Catherine Perry set the jury trial for February 21, 2012, where a permanent injunction against the film’s distribution and/or damages for copyright infringement will be decided.  The artist and his lawyers hoped to expedite the trial to August, but Warner Brothers is opposing such a quick schedule.  They say that a quick trial would not be necessary because Warner Brothers plans to remove the “offending mark” from the movie after the film leaves theaters.  This would eliminate any additional damages that may result from use of the tattoo in the film.    Warner Brothers is not planning on releasing the film on DVD and Blu-ray until December 2011, giving the studio enough time to digitally change the tattoo in every shot of the film.

As Matthey Belloni points out, it will cost a pretty penny for Warner Brother to remove the tattoo from the film.  However, a June 16 private mediation may lead to the settlement of the case that many anticipate.    In any event though, a lot of money is to be spent.

At first glance, this seems to be a pretty clear attempt by Warner Brothers to induce a settlement.  They want to show the tattoo artist and his lawyers that Warner Bros. will pay any amount of money to prevent the collection of damages from them.  Thinking about this more, I question whether the tattoo artist and his lawyers take the bait is another story altogether.  The Hangover: Part II is still making money in theaters and damages from over $350 million in ticket sales could still be a large sum.  I would not be shocked if the tattoo artist rejected settlement just to go after a piece of that pie.

There is part of me that wants to see this go to trial.  I still am not sure that Warner Brothers is in the wrong.  I would love to be proven wrong, but I think Warner Brothers has a lot of tools they can use to fight this suit.

I question how willing Warner Brother’s actually is to alter their movie.  It can obviously be done, but at what cost?  A lot of money and some less than stellar special effects, not to mention the integrity of the writers, directors and producers of the film.  Movie studios can do wondrous things with special effects, but I do not have full confidence that the film will look or feel the same on DVD or Blu-ray as it did in the theater.  While Warner Brothers may not be as concerned with picture quality as they are with lawsuits, it may still aggravate many movie fanatics like me.

I think the larger worry to take away from this is the fact that Warner Brothers is saying that they will alter their film.  Movies and television shows have been altered when re-aired or put on tape/DVD/Blu-ray because of the outcome of copyright infringement suits or negotiations.  Sometimes a studio’s lawyers may blur images out before the film or show ever makes it to the screen.  I am unaware of any group using it as a negotiation technique, though.  Are we going to enter an era of willful alteration when slapped with an infringement lawsuit?  I hope not.  Copyright law needs to be challenged every once in awhile so as to shape the law or its direction.  Simply bowing down in the face of a lawsuit might be the best monetary solution in some cases, but it may not always be the best solution for the progress of the law.

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