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May 26, 2011 2:43 PM

Copyright Suits Can't Keep Potential Blockbusters Out of Theaters

Posted by Andrew Goldberg

TH2_Poster_Resized From The Prior Art

Copyright infringement suits hang over two highly anticipated blockbuster sequels set for release over the Memorial Day weekend.

In one case, a federal district court judge in Missouri ruled Tuesday that The Hangover Part II could open as scheduled Thursday, despite an attempt by tattoo artist S. Victor Whitmill to enjoin the film over its use of boxer Mike Tyson's famous face tattoo. Whitmill created the tattoo for Tyson, and it appears in the movie encircling the left eyes of both Tyson, who makes a cameo appearance, and the character played by actor Ed Helms.

Whitmill sued Warner Bros. in April for copyright infringement, alleging that the tattoo in the movie is a duplication of his distinctive creation.

"There is substantial similarity between the copyrightable expression in the Original Tattoo and the Pirated Tattoo," Whitmill argued in his complaint, filed by lawyer Geoffrey Gerber of the St. Louis-based BrickHouse Law Group, on April 28 in the Eastern District of Missouri. [Download Whitmill Complaint]

"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," the suit argues. "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."

Represented by attorneys with Schiff Hardin, Warner Bros. argued that any delay in the release of the movie would cause it enormous financial losses while also subjecting the studio to massive damages claims by movie theaters over lost ticket sales.

"Plaintiff seeks to enjoin the distribution of a major motion picture--and to do so just days before its national release on more than 7,000 screens in over 3,600 theatres," the Schiff Hardin lawyers wrote in their brief opposing a preliminary injunction. "The harm to Warner Bros. and numerous third parties from such an injunction would be devastating."

District Court Judge Catherine D. Perry agreed, declining to deprive Hangover fans of a chance to see the sequel over the holiday weekend, but also, according to Gerber, delivering some sobering news to the studio about its potential liability at trial.

"Judge Perry said that my client has a 'strong likelihood of success' on the merits and will probably win the case at trial for money damages," Gerber--adding that the judge said most of Warner Bros.' defenses were "just silly"--said in an interview with The Prior Art.

"We lost a motion for a preliminary injunction, so we're obviously disappointed that our client is being irreparably harmed by the widespread release of the movie," said Gerber. "But at the same time, we understand and appreciate the judge's concern for innocent third parties likely to be harmed by an injunction--like movie theaters--who shouldn't be held responsible for Warner Bros.' conduct."

Frederick Sperling, a partner in Schiff Hardin's Chicago office who is representing the studio, says that  "the court's ruling protects the interest of the public as well as those of Warner Bros." Sperling adds that "Warner Bros. believes the claims against it are without merit and intends to vigorously defends its rights."

Although the amount Whitmill ultimately decides to ask for in damages will be based on how well the movie does at the box office and in DVD sales, there's reason to believe the figure will be substantial. The Hangover grossed over $277 million in the U.S. and over $467 million worldwide, according to Box Office Mojo, a site that tracks box office results. Still, to be compensated, Whitmill must show how much the infringement itself contributed to Warner Bros.' profits from the film.   

Calling Whitmill's copyright claim "radical," Warner Bros. argues in its opposition brief that "the very copyrightability of tattoos is a novel issue," and that the plaintiff is not entitled "to control the use of a tattoo that he created on the face of another human being." In any event, the studio says, the tattoo on the face of Ed Helms in the sequel constitutes a fair use parody of Tyson's tattoo, and the plaintiff shouldn't be allowed to sue over it now because he never objected to the use of tattoo in the first movie (Tyson made a brief, memorable appearance in that film as well). [ Download Warner Bros. Opposition to Injunction]

"They put the tattoo in every trailer and every single television commercial, and almost all of the print advertising. And they put an $80 million marketing budget behind it to sell this movie. That's not a parody. It's a straight-up commercial use of someone else's art," Gerber told The Prior Art. "I saw absolutely no parody and the judge saw no parody."

Another film that won't be prevented from opening this weekend but also faces a copyright infringement suit is DreamWorks Animation's Kung Fu Panda 2. That suit was filed against DreamWorks in February by Jayme Gordon, another artist.

Unlike Whitmill, Gordon, who is represented by Fish & Richardson and Duane Morris, never sought  to block the nationwide premiere of the sequel over the copyright issue. He is, however, hoping to take a big bite out of the studio's past and future profits from the movies about Po, the paunchy Kung Fu-fighting panda.

Gordon claims that the studio copied many of the characters, plot elements, and settings in the movie from his illustrated literary works. Specifically, he alleges that Po, the portly panda voiced by Jack Black, is a virtual double for Kidd, a giant panda that Gordon first drew in the early 1990s. Gordon further contends that both pandas are supported by a group of the same five fighting animals and befriend small red panda kung fu masters who use chopsticks while fighting.

In an answer to the complaint filed on May 6, DreamWorks, represented by Foley Hoag and Loeb & Loeb, denies Gordon's allegations. It acknowledges that while the plaintiff did indeed submit an unsolicited package to DreamWorks in October 1999, that package was rejected and returned uncopied in accordance with the company's policy regarding unsolicited material. [ Download Panda - Answer by Dreamworks]. (Gordon filed an Amended Complaint in the case on April 19, reasserting his claims against the studio.) [ Download Gordon Amended Complaint]

DreamWorks also asserts several affirmative defenses in its court filing, including that its work was independently created and that Gordon’s suit, which wasn’t filed until more than two years after the release of Kung Fu Panda in 2008, is no longer timely.

Whatever happens at the box office, it’s sure to be a busy summer in court for Hollywood’s copyright lawyers.

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