Is a Face Tattoo Displayed on a Character in a Film Protected Under the Copyright Law?

The Eastern District of Missouri recently denied a tattoo artist’s request for a preliminary injunction against Warner Brothers’ release of the Hangover IIWhitmill v. Warner Bros. Entertainment Inc., 11-cv-00752 (E.D. Mo. April 28, 2011).

In that case, artist S. Victor Whitmill (“Victor”), creator of Mike Tyson’s face tattoo, filed a lawsuit against Warner Brothers Entertainment Inc. (“Warner Brothers”) for not seeking his approval to use the tattoo design on the face of another character in the movie.  Victor had obtained a release from Mike Tyson after creating the tattoo and neither Tyson nor Warner Brothers sought his approval.  The movie used the tattoo design on another character’s face in a majority of the scenes.

In ruling, the judge examined four factors:

1) plaintiff’s likelihood of success on the merits;

2) whether plaintiff was threatened with irreparable harm;

3) the balance of the equities; and

4) the public interest.

The Judge felt that Victor had a strong likelihood of prevailing and that he had suffered irreparable harm because he lost control over the tattoo image.  However, the balance of equities and public interest favored Warner Brothers.  The judge found that Warner Brother’s harm outweighed Victor’s because Warner Brothers would lose millions if the movie was enjoined as compared to Victor’s loss of one tattoo design that would not affect his entire business.  Further, the public’s desire to see the movie was considered and it was determined that non-parties such as theater owners and distributors would also lose money and be affected. Ultimately, all the factors considered as a whole were tipped in favor of Warner Brothers although the Judge reasoned that Victor would probably win the case.

Early this year, the case was settled.  The terms of the settlement were kept confidential, but Warner Brothers did mention that it will not have to digitally alter the film for the DVD release, as was previously considered.

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