S. Victor Whitmill, the tattoo artist who who sued Warner Brothers for putting a copy of Mike Tyson’s facial tattoo on Ed Helms’ face in The Hangover: Part II, won’t be able to block the scheduled Thursday release of the movie. But while the judge presiding over the lawsuit wasn’t inclined to impede the release, she made several statements that seemed to favor Whitmill’s ideas about copyright and tattos, and called Warner Brothers’ defenses to the copyright infringement allegations “silly.”
The fact that the judge rejected an injunction isn’t surprising. Allowing a lawsuit to quickly block the release of a movie that Warner has spent $80 million marketing would give the plaintiff enormous leverage to extract a settlement without having proven his case. Whitmill can still pursue a lawsuit for major damages, and if he wins, may be able to ask for an injunction down the road against further distribution (like a DVD release).
The case has attracted a fair amount of attention because there’s very little case law in the area of tattoos and copyright. The judge didn’t issue a detailed written ruling after a hearing on the injunction yesterday, but first-person reports have now emerged that she’s quite sympathetic to Whitmill’s arguments.
According to an account by Yvette Joy Liebesman, a law professor at St. Louis University, U.S. District Judge Catherine Perry went into some oral analysis from the bench about whether Warner’s copying of the tattoo onto actor Ed Helms’ face constituted “fair use” under copyright law.
First, Perry discounted Warner’s argument that the tattoo somehow has limited or no protection simply because it is on a human being’s body. (It seems that she used the word “silly” in this context, but it isn’t completely clear from the available reports.)
The most extraordinary part of Perry’s finding is that “there was no parody or transformative use.” To me, it’s frankly unbelievable that someone couldn’t at least see the possibility of some humorous mocking in the idea of Ed Helms’ cowering, wimpy character (pictured at left) bearing the same tribal facial tattoo that Mike Tyson sports. (And frankly, a tribal facial tattoo looks kind of ridiculous on anyone… including, yes, Mike Tyson.)
Perry also noted that “the entire tattoo in its original form was used (not in any parody form), the tattoo was not necessary to the basic plot of the movie, and that Warner Brothers used the tattoo substantially in its marketing of the movie.” And Perry found that Whitmill’s “loss of control over his design” could be seen as an “irreparable harm,” which is a way of saying he might get an injunction farther down the line.
Overall, this is a surprisingly strong reaction in favor of the plaintiff. It’s not a final ruling of any kind but these are strong indications that the judge does not find the studio’s defenses convincing here. A Warner Brothers lawyer told The Hollywood Reporter that Whitmill’s lawyer had made a damage demand of $30 million. With no preliminary injunction pending, he won’t get that kind of cash. But Judge Perry’s clearly favorable view of his case has indeed put him in a good position to reap a sizeable settlement, as Liebesman notes.
Update 5/25: An interesting bit of news has emerged about the role of a leading copyright scholar in this case. To lay out its argument that tattoos don’t qualify for copyright–the argument that the judge in this case found “silly”–Warner Brothers hired the author of the nation’s leading copyright treatise, David Nimmer, a UCLA law professor and a partner at the law firm of Irell & Manella. In this case, Nimmer argued that tattoos shouldn’t be copyright-protectable at all–an apparent reversal of his stance a decade ago that tattoos presumably did qualify for copyright protection. Ann Bartow of USC law criticized Nimmer’s contribution to this case in a blog post published Wednesday: “Having given the matter ‘intense consideration,’ it turns out that copyright law is configured exactly as his client needs it to be,” writes Bartow. “[A]nd see paragraph 25, that is what Congress intended all along!”