THE HANGOVER PART II (2011)
S. VICTOR WHITMILL v. WARNER BROS.
The Tattoo that Almost Scuttled a Major Film Release
Who owns the rights to a tattoo design? Warner Bros almost had to delay the release of The Hangover Part II due to a lawsuit over this issue. In the film Ed Helms’ character Stu Price woke up from a drunken evening with a tattoo on his face that was identical to the infamous facial tattoo of boxer Mike Tyson. You may recall that Mike Tyson appeared in the original The Hangover in 2009. This may well have been what lulled production into thinking they had no legal concerns with using the same design for another character in the sequel. Callback humor is standard issue, right?
Tattoo artist S. Victor Whitmill filed a lawsuit against Warner Brothers Entertainment just a few weeks before the scheduled release of the film. Mr. Whitmill had a registered copyright for the design and sought an injunction to prevent release of the movie as Warner Brothers had not sought a license to use his protected work. Warner Brothers’s main defense was that of fair use, and claimed that use of the tattoo design was parody and therefore allowed.
The district court judge denied the injunction, but allowed the case to move forward. In other words, Warner Brothers Entertainment could release the picture, but that didn’t mean they weren’t in line for a hefty judgment in favor of Mr. Whitmill. Warner Brothers stated that it was willing to digitally alter the tattoo for VOD and home video release, but ultimately settled with Mr. Whitman out of court for an undisclosed amount.
A couple of important lessons for filmmakers can be learned from this case. First, it is important to document matters even as seemingly benign as a tattoo design in your script. While character appearance and costuming is often handled outside of a script, when it is something that acts as a plot device as it did in this instance, make certain it is in the script! Second, proper script clearance could have prevented this issue from arising in the first place. Something like a tattoo design is exactly the type of thing experienced script clearance companies know how to spot that may go missed by production. Finally, if you have a question about whether something is fair use, don’t go with your gut or the opinion of a seemingly wise member of the production team. Get a fair use opinion and move forward with confidence. The Clearance Lab can help you handle all of these issues.