LOS ANGELES (Hollywood Reporter) - The man who gave Mike Tyson his distinctive facial tattoo has sued Warner Bros. over the similar-looking facial art on Ed Helms’ character in the upcoming comedy “The Hangover: Part II.”
S. Victor Whitmill, an award-winning tattoo artist who calls the Tyson design “one of the most distinctive tattoos in the nation,” is asking for an injunction to stop the release of the highly-anticipated comedy sequel, set to bow in the United States over Memorial Day weekend at the end of May.
“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,” argues the complaint, filed Thursday in federal court in Missouri.
“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.”
Warners declined to comment on the suit.
It’s an interesting lawsuit. Copyrighted works are copyrighted works, no matter whether they are painted on canvases or walls or the bodies of former heavyweight champions. Whitmill attaches to the lawsuit his copyright registration for the “Original Tattoo,” as well as Tyson’s signed release granting rights in the work. (He also includes some photos of himself with the boxer while applying the tattoo in 2003 in Las Vegas.)
The designs do look very similar. And what makes the matter dicey for Warners is that the tattoo on the Helms character appears to be a direct comedic reference to Tyson, who appeared extensively in the first film. That might make it tough to argue that the designs are merely coincidentally similar.
But Warners could argue that the copyright isn’t valid, or that the studio changed the design just enough to escape infringement, or that the use 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. Whitmill also is challenging the use of the image in ad materials and trailers.
What’s scary for the studio is the request for an injunction to stop the movie’s release. A few years back, Warners was forced to fork over a hefty settlement to the author of the source material for its “Dukes of Hazzard” film when a judge issued an injunction weeks before the film’s release.
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