The Wolfpack ain't going quietly.
With the release of The Hangover Part II just days away, there remains a chance, however slight, that a lingering battle over a tattoo could keep the film from hitting theaters this weekend.
So should you be canceling your reservations?
Not so fast.
As we reported last month, the tattoo artist behind Mike Tyson's famous facial ink is suing Warner Bros., claiming the studio ripped off his copyright by parodying his design without permission. In addition to the lawsuit, the inkmeister, S. Victor Whitmill, has also asked for an injunction block the release of the hugely anticipated sequel, which is expected to rake in upwards of $100 million over the holiday weekend.
To keep the film on track for its scheduled release on Thursday, Warners filed a brief on last week laying out its best defense in what could shape up to be a "novel intellectual property battle."
Per court papers filed Friday in a U.S. District Court in Eastern Missouri , the studio claims that since Tyson appeared in a cameo in the original 2009 flick without objection from Whitmill, Warners has an implicit license to employ a similar design for Ed Helms' character. Warners' lawyers also insist that the case is unprecedented—no one has ever filed a similar copyright claim against a movie based on body art.
While admitting that the boxing champ signed a release form in 2003 giving the rights to the tattoo to Whitmill's Paradox Studio of Dermagraphics (there's debate over whether Tyson did so knowingly), the studio vehemently denies that the tattoo on Helms' face was "pirated" or is a "virtual exact reproduction" of Tyson's. Warners' lawyers also point out that Tyson's tatoo has appeared not only in the first Hangover, but in thousands of pictures in countless magazines, as well as on TV and the Internet without similar legal action from Whitmill.
Among the brief's other lines of defense:
Warner Bros. adds that any injunction would also destroy the value of the film by increasingly the potential for a pirated or leaked copy to make its way to the public since film prints film prints are being shipped to more than 3,600 theaters this week.
For his part, Whitmill's attorney fired back Monday with a response refuting Warner's fair use argument and defending his claims.
"Not even Warner Bros. can dispute that original tattoo designs are protected by copyright. They are pictorial works 'fixed in any tangible medium of expression'," his brief states.
Furthermore, the artist adds that the tattoo is a "central plot device" and is now a part of The Hangover Part II's advertising campaign and even a 7-Eleven collectible Big Gulp promotion and an iPhone map.
An attorney specializing in copyright issues agrees that Whitmill may have a point, but he doesn't see the judge stopping the movie's release.
"While the art itself is likely copyrightable...it would appear to me that there is little chance the tattoo artist will be able to get an injunction here a few days before the film is released," Zeynel Karcioglu, an attorney with New York-based firm Jacobs & Burleigh (and who is not involved in the case), tells E! News.
"This use seems to fit into the frame work of classic 'fair use' as a parody—Warner Bros. is really parodying Mike Tyson, a celebrity, as an 'inside joke,' referencing his appearance in the first Hangover movie," the lawyer adds. "While the use is commercial, Tyson appears to be in this movie as well as in the last, so it's difficult to see how the tattoo on an actor who is not Tyson would be that much different from the tattoo on Iron Mike himself."
Either way, a decision from the judge is expected soon.
Meanwhile, one person not offended by the use of the tattoo is Tyson himself. The ex-champ, who is back for seconds in the sequel, exclusively tells E! News:
"I was honored," he says of the ad campaign featuring Helms' tatted-up face. "It was more profound then my actual face being on it [the poster]—big time because it symbolizes me."
Anybody want to argue with Tyson?