Whitmill gave Mike Tyson the well-known facial ink that allegedly inspired Ed Helms' tat in the film; he claimed copyright infringement because the studio did not seek his approval before using the design. According to Whitmill, his design for Tyson is "one of the most distinctive tattoos in the nation" and he owned the rights to it.
"We are very gratified by the court's decision which will allow the highly anticipated film, 'The Hangover Part II,' to be released on schedule this week around the world," Warner Bros. said in a statement. "Plaintiff's failed attempt to enjoin the film in order to try and extract a massive settlement payment from Warner Bros. was highly inappropriate and unwarranted."
Court papers filed in late April said, "When Mr. Whitmill created the Original Tattoo, Mr. Tyson agreed that Mr. Whitmill would own the artwork and thus, the copyright in the Original Tattoo. Warner Bros. Entertainment, Inc. -- without attempting to contact Mr. Whitmill, obtain his permission, or credit his creation -- has copied Mr. Whitmill's Original Tattoo and placed it on the face of another actor ... This unauthorized exploitation of the Original Tattoo constitutes copyright infringement."
Lawyers for Warner Bros. told U.S. District Court Judge Catherine D. Perry that Whitmill asked the studio for a $30 million settlement. Whitmill's lawyers argued the massive sum represented the studio's potential damages exposure.
Judge Perry is allowing the studio to release the film as scheduled this Thursday, citing the hardship on the third-party theater owners planning to screen the film this weekend and the irreparable damage an injunction would cause Warners, which has racked up more than $80 million in marketing costs for the flick and spent millions more on the production itself.
The judge is, however, allowing the case to move forward as straight infringement action. If Whitmill decides to proceed, he will have to prove he has a valid copyright of the image used on Tyson and that the tattoo depicted in 'The Hangover Part II' is an unquestionable replica of that image. If he were to win the infringement case at expedited trial, which the judge offered, he could win a permanent injunction against Warner Bros. that could stop the film's distribution on DVD, cable and Internet outlets.