Since opening Memorial Day weekend, The Hangover Part II has generated close to $190 million in ticket sales. But that money won’t all go to line the pockets of Warner Brothers executives — there is a good chance that a big chunk of change will also go to a Missouri-based tattoo artist whose copyright infringement suit almost blocked release of the movie altogether.

Whether or not you have seen the film, you have probably at least seen advertisements prominently featuring the character played by Ed Helms with a big tattoo on the side of his face. The tribal-inspired swirl pattern is supposed to serve as a humorous reference to the tattoo of famed boxer Mike Tyson, who makes an appearance in both the original movie and the sequel.

Mike Tyson

Unfortunately for Warner Brothers, S. Victor Whitmill, a tattoo artist formerly of Las Vegas who now lives in rural Missouri, didn’t get the joke. Whitmill filed suit in federal court in St. Louis in April, seeking an injunction that would prevent release of the film. He claims copyright in the Tyson tattoo design and claims that the movie’s use of it, without permission, is a classic case of infringement.

This might sound a bit counterintuitive, as it would seem that a tattoo inked into Tyson’s skin would become his property to do with as he pleases. But while Tyson can own that piece of body art, U.S. Copyright Law says he does not own the right to reproduce or distribute the original design. Neither does Warner Brothers.

Warner Brothers invokes a “fair use” defense against Whitmill’s claim: the tattoo reference constitutes parody, not copying, so no permission was required prior to use. The original image had to be invoked for viewers to recognize and appreciate the humorous reference, the studio argues. (For more on parody and copyright law, see the interesting discussion posted here.)

But U.S. District Judge Catherine D. Perry has called the parody defense “silly,” and says Whitmill has “a strong likelihood of prevailing on the merits for copyright infringement.” This was not parody, she said — it amounted to “an exact copy.” Judge Perry said she would have enjoined release of the movie but for the strong public interest in protecting against losses by innocent third parties. She allowed the movie to open as scheduled but predicted that ultimately, Whitmill will get at least damages.

I can certainly understand the judge’s zealous protection of an artist’s creative control, especially in this particular case, which feels a bit like a David and Goliath matchup of small-town tattooist versus Hollywood heavyweights (no pun intended). At the same time, I am a bit uncomfortable with the idea that the court gets so much say in what does and does not constitute parody and humorous social commentary. I wonder: could this ultimately become a free speech issue?

Lauren Gregory

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