Tattoo artist S. Victor Whitmill, who has created, inked and copyrighted former heavyweight boxing champion Mike Tyson's iconic facial tattoo, has hauled Hollywood movie producer Warner Bros. to court for using the tattoo design without his consent in the upcoming comedy flick The Hangover: Part II.
Whitmill, in his infringement lawsuit filed in deferal court in Missouri on Thursday, said that in the preview of the movie, actor Ed Helms sports a face tattoo exactly like the design inked on the boxer's left cheek and temple. Whitmill had worked on the Maori-inspired tattoo for Tyson in 2003.
Whitmill, who is represented by Geoffrey Gerber with The BrickHouse Law Group, said the movie producer used the design without his consent or knowledge and is seeking an injunction to halt the release of the movie till the dispute is resolved. The tattoo artist is also seeking an injunction for banning the image of Helms from being used in any advertisement or promotional materials, including movie trailers. Whitmill is also seeking costs and unspecified damages for unjust enrichment.
When Mr. Whitmill created the original tattoo, Mr. Tyson agreed that Mr. Whitmill would own the artwork and thus, the copyright in the original tattoo. Warner Bros. Entertainment, Inc. - without attempting to contact Mr. Whitmill, obtain his permission, or credit his creation - has copied Mr. Whitmill's original tattoo and placed it on the face of another actor...This unauthorized exploitation of the original tattoo constitutes copyright infringement, the complaint states.
On information and belief, the movie features a virtually exact reproduction of the original tattoo, which appears on the upper left side of the Stu Price character's face, played by actor Ed Helms.
Mr. Whitmill has never been asked for permission for, and has never consented to, the use, reproduction, or creation of a derivative work based on his original tattoo, including the pirated tattoo.
Nor has he ever been asked or agreed to the public display and distribution of a motion picture containing the pirated tattoo, or to the use of any of his other exclusive rights in the original tattoo under the Copyright Act.
Warner Bros. has already infringed Mr. Whitmill's copyright through its unauthorized copying, distribution and public display of the pirated tattoo in advertising and promotion for the movie and by making an unauthorized derivative work - namely, the pirated tattoo - that is based upon and copies virtually all of the copyrightable subject matter of the original tattoo, the complaint states.
Warner Bros. could not be reached for comments. It is uncertain whether the movie producer will claim that the designs are merely coincidentally similar or whether they will argue that the copyright isn't valid. An intellectual property lawyer said Warner Bros. could also claim that the tattoo in the film is transformative, meaning it is depicted in a larger context and thus a fair use, or that's it's a parody.
Incidentally, this is not the first time Warner Bros. had a brush with infringement of intellectual property. In 2005, the studio was left red-faced when the author of the source material for its Dukes of Hazzard film filed a copyright infringement lawsuit and the judge issued an injunction weeks before the film's release. However, Warner Bros. managed to squirm its way out of the problem by settling the claim for an undisclosed sum.
The movie The Hangover: Part II is scheduled for release in late May.
Tyson, who enjoyed a cameo in the first Hangover movie and got good reviews, also could not be reached for comments.
Meanwhile, enjoy the trailer of The Hangover: Part II and decide for yourself whether the tattoo is identical. And, don't forget to leave comments -