[A2k] It's going to be a busy summer for copyright lawyers

Manon Ress manon.ress at keionline.org
Thu May 26 12:55:39 PDT 2011

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

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

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

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.

Manon Anne Ress
Knowledge Ecology International
1621 Connecticut Ave, NW, Suite 500
Washington, DC 20009 USA
manon.ress at keionline.org

More information about the A2k mailing list