Top Warner executives testify at "Hangover" tattoo hearing

Mon May 23, 2011 10:57pm EDT

Cast member Ed Helms poses for photographers next to a poster of his character as he arrives at the Los Angeles premiere of the film ''The Hangover'' at the Grauman's Chinese theatre in Hollywood, California, June 2, 2009. REUTERS/Danny Moloshok

Cast member Ed Helms poses for photographers next to a poster of his character as he arrives at the Los Angeles premiere of the film ''The Hangover'' at the Grauman's Chinese theatre in Hollywood, California, June 2, 2009.

Credit: Reuters/Danny Moloshok

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LOS ANGELES (Hollywood Reporter) - How seriously is Warner Bros. taking the lawsuit by Mike Tyson's tattoo artist that threatens to halt this week's release of "The Hangover: Part II?"

The studio dispatched two of its top executives to St. Louis on Monday to testify during a four-hour federal court hearing on whether a judge will issue an injunction preventing the planned Thursday rollout of the highly anticipated comedy sequel.

Warners president of worldwide marketing Sue Kroll and president of domestic distribution Dan Fellman both took the stand in St. Louis federal court where S. Victor Whitmill is seeking an injunction on the grounds that the facial tattoo worn in the film by Ed Helms violates a copyright in the original work Whitmill created for Tyson.

Warner Bros. general counsel John Rogovin and other studio intellectual property lawyers accompanied Fellman and Kroll, who were cross-examined on the witness stand by Whitmill attorney Geoffrey Gerber.

According to sources who attended the hearing, the Warners executives told the court that the studio has spent roughly $80 million on marketing the sequel to 2009's "The Hangover" and that blocking the film's debut in theaters would cause irreparable financial harm. Also, thousands of theaters are in the process of receiving the film.

Whitmill, who designed the tattoo on Tyson's face, filed suit April 28 claiming copyright infringement and asking for an injunction. Whitmill was the sole witness in support of his case at Monday's hearing before U.S. District Court Judge Catherine D. Perry.

In court filings, Warners says Whitmill will not be able to succeed on the merits of his claims.

"The very copyrightability of tattoos is a novel issue," the Warner Bros. brief says. "There is no legal precedent for plaintiff's radical claim that he is entitled, under the Copyright Act, to control the use of a tattoo that he created on the face of another human being."

Warner Bros. says that Tyson's tattoo is ubiquitous and that he appeared in the first "Hangover" movie without objection from Whitmill. Tyson also appears in the second film but is not a defendant.

Perry is expected to issue a ruling on the injunction Tuesday morning.

(Editing by Chris Michaud)

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