06/07/2011

BUSINESS INSIGHTS FOR LAW DEPARTMENT LEADERS

OUTSIDE EXPERTS

MARK C. SCARSI IP: Will Copyright Law Give Warner Bros. a Hangover? A TATTOO ARTIST’S CLAIM OF COPYRIGHT INFRINGEMENT COULD COST MOVIE STUDIO MILLIONS.

By all accounts, Warner Bros. new movie, fixed in any tangible medium of expression.” that Whitmill’s harm could be adequately “The Hangover Part II,” is a wild success Section 102 is interpreted fairly literally, remedied by a monetary judgment. on the road to becoming a box office so if you doodle on your napkin at dinner, It seems that the only remaining question blockbuster. Like the movie’s premise, you have the right to prohibit others from is how much Warner Bros. will have to pay however, periods of euphoria can often lead copying your doodle. This is true even if Whitmill. Apparently, Whitmill’s pre-suit to a painful hangover. What could cause don’t own the napkin! demand was $30 million. With the positive Warner Bros.’ hangover? Believe it or not, Because copyrights can exist in so many signals from Perry and the massive success it’s all about copyright law. things (pictures, sculptures, artwork, music, of “The Hangover Part II,” that number will As was widely reported last week, etc.), filmmakers routinely go through certainly go up. Not a bad payday for an Victor Whitmill, a Missouri “tattoo artist,” efforts to ensure they have the rights to afternoon’s work at the tattoo parlor! brought an action against Warner Bros. copy the things that appear in their films. seeking to stop the Memorial Day weekend This clearance effort is time consuming and opening of “The Hangover Part II.” While expensive, often amounting to more than District Court Judge Catherine Perry 10 percent of the entire cost of a film. ultimately decided to let the movie open With this background, it is easy to see on schedule, Warner Bros. is not out of why Whitmill stands to reap a significant hot water. In fact, the comments Perry windfall from the “Hangover Part II.” made at the injunction hearing should make Whitmill’s design is an original work Warner Bros. think about stocking up on fixed in a tangible medium of expression Alka-Seltzer. (i.e., Tyson’s face) and Warner Bros. copied it The dispute centers on a unique tattoo by placing it on Helms’ face in its movie and that Whitmill created for former promotional materials. heavyweight champion boxer Mike Tyson. In opposing the injunction, Warner Bros. Tyson appeared in the original “Hangover” made several “creative” arguments, including movie sporting the tattoo, and that tattoos cannot be copyrighted, that the “The Hangover Part II” features another copying was “fair use,” that Tyson had an character, played by Ed Helms, adorned implied license to allow the copying, and with a tattoo similar to Whitmill’s unique finally, that Whitmill’s failure to object to tattoo design. Whitmill argues that the first movie stopped him from objecting Warner Bros.’ use of the tattoo design on to the second. Perry reportedly dismissed Helms constituted copyright infringement. each of these arguments as “just silly.” While the copyrightability of a tattoo Perry went on to indicate that Whitmill may seem like a novel question, tattoo art has a strong likelihood of succeeding on certainly fits squarely within the definition his copyright infringement claim at trial. of copyrightable subject matter. It appears that the only thing that prevented Under United States copyright law, an Perry from stopping the release of the movie individual automatically receives a copyright was her concern for the vast number of third Mark Scarsi is a partner in the Intellectual (literally the right to make copies) for any parties (theater owners, etc.) that would Property Group of Milbank, Tweed, Hadley & of his or her “original works of authorship be harmed by an injunction and her belief McCloy, LLP, resident in the Los Angeles office.

Reprinted with permission from InsideCounsel