When is a Lawsuit Frivolous? That’s Why We Have Courts

When a St. Louis-area tattoo artist recently sued Hollywood studio giant Warner Brothers in an attempt to prevent the release of the movie “The Hangover Part II,” a chorus of entertainment bloggers and movie industry reporters confidently labeled the lawsuit as “frivolous.” However, a closer look at the facts and the analysis provided by the federal judge overseeing the case show that determining the validity of a lawsuit isn’t as easy as calling balls and strikes from bleachers. 
 
The copyright claim filed by tattoo artist S. Victor Whitmill alleges that Warner Brothers failed to seek her permission to reproduce the distinctive facial tattoo she designed for former heavyweight boxer Mike Tyson years ago. In the movie and related promotional materials, actor Ed Helms is prominently featured wearing a replica of Tyson’s tattoo. While U.S. District Judge Catherine Perry of St. Louis ruled that Warner Bros. could distribute the movie after finding that theater owners would be unfairly harmed by preventing the film’s scheduled release on May 26, the judge also ruled that the lawsuit should be allowed to proceed on the merits to determine the underlying legal issues.
 
While some may think that copyright protection of a tattoo is silly on its face, artists of all stripes have long had such protection for their paintings, sketches, sculptures, drawings, murals and other works of art.  It isn’t that difficult for any artist to produce a drawing of Charlie Brown, but few of us would question, say, Charles Schultz’s (or his heirs’) right to decide who – if anyone – has the right to use or profit from the iconic figure that he created.  Even the blog entry you are currently reading is protected.   
 
This case presents some novel legal issues, as there isn’t really much precedent for, um, “body art.”  But if you read accounts of the decision, it is clear that the lawyers and judge are methodically applying the well-accepted legal analysis of whether a particular item can be copyrighted and whether any exceptions apply. To experienced intellectual property lawyers, there are good arguments on both sides.  With “The Hangover Part II” earning more than $120 million in the opening weekend alone, there is nothing frivolous about that. 
 
 
 

Posted: 6/3/2011 2:40:53 PM by On the Merits Editor | with 0 comments

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Thanks for stopping by On the Merits, the first blog from the Texas Center for Legal Ethics. On the Merits will take a close look at significant legal stories with an eye toward addressing the legal myths and misconceptions that turn up in news stories, movies, TV programs, websites, anonymous emails and other forms of mass communications. Our goal at On the Merits is to provide readers with a thoughtful examination of what the media and others are saying about the legal profession and to apply the frequently-absent context of how the legal system actually works.

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