Tattoo artist can still press case of copyright infringement

Warner Bros.’ release of “The Hangover Part II” can go forward as planned on Thursday, after a federal judge rejected an effort to block its release by a St. Louis artist who claims that a facial tattoo worn by Ed Helms infringes on a copyright for one he created for Mike Tyson.

But U.S. District Judge Catherine D. Perry signaled that artist S. Victor Whitmill “has a strong likelihood of success” of prevailing in his copyright infringement claim — and she’s allowing the case to go forward on an expedited schedule.

She rejected Whitmill’s request for a preliminary injunction in part because the studio stands to lose more than $100 million and that it would disrupt related businesses, like exhibitors and others involved in the distribution chain.

“The public interest does favor protecting the thousands of other business people in the country as well as Warner Brothers, and not causing those nonparties to lose money, and I think it would be significant, and I think it would be disruptive,” she said, according to a transcript of her remarks at a Tuesday hearing.

Yet Perry called “most” of the studio’s arguments “just silly.”

“Of course tattoos can be copyrighted. I don’t think there is any reasonable dispute about that,” she said, noting that Whitmill and Tyson, who got the tattoo in 2003, signed a document saying that Whitmill kept the rights.

She also rejected Warner Bros.’s arguments that Helms’ tattoo was a parody, which courts have exempted from infringement claims.

“This was an exact copy,” she said. “It’s not a parody.”

The image of Helms wearing the tattoo appears not just in the movie but in marketing materials, as well as in a tie-in campaign with 7-Eleven.

Whitmill’s legal team, Michael Kahn, Geoffrey Gerber and Peter Salsich from Brickhouse Law Group in St. Louis, argued that the issue was not the way that Tyson has appeared in “Hangover” movies and other projects — for which Whitmill raised no objection — but that its design was replicated on another character, played by Helms.

Tyson also appears in the film, which is a critical point for Warner Bros. as it argues that it was given an “implied license” to use the tattoo. Tyson agreed to let the studio use his likeness, and raised no objection when it was used on Helms, said the studio’s counsel, Frederick J. Sperling of Schiff Hardin in Chicago. It’s part of the schtick, as when Tyson warns, “You better get that tattoo off your face.”

Warner Bros. has a lot at stake. That was evident in the hearing on Monday, in which WB’s heads of marketing and distribution, Sue Kroll and Dan Fellman, were among those testifying. Kroll told the court that the studio has an $81 million media marketing budget for the movie, with $77 million spent as of last Friday. With tracking showing the movie doing a similar level of “Twilight,” “The Dark Knight” and “Shrek,” Fellman said that he expects the sequel to gross more than $100 million in its opening weekend, or more than double that of the original.

“We are very gratified by the court’s decision which will allow the highly anticipated film, ‘The Hangover 2′ to be released on schedule this week around the world,” the studio said in a statement. “Plaintiff’s failed attempt to enjoin ‘H2′ in order to try and extract a massive settlement payment from Warner Bros. was highly inappropriate and unwarranted.” Sperling pressed Whitmill on whether he was aware that his attorney had “demanded $30 million” to settle the claim, before Kahn objected and Perry sustained it. Kahn said that Sperling had “spent a week” trying to get them to make a settlement offer, and that the figure was a “calculation of the range of his client’s exposure.”

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