Judge denies bid to halt "Hangover 2" over tattoo

Tue May 24, 2011 2:30pm EDT

A scene from ''The Hangover: Part II''. REUTERS/Warner Bros Pictures

A scene from ''The Hangover: Part II''.

Credit: Reuters/Warner Bros Pictures

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LOS ANGELES (Hollywood Reporter) - A federal judge has declined to halt the release on Thursday of "The Hangover: Part II" as part of a copyright infringement lawsuit over a distinctive tattoo worn by actor Ed Helms.

Movie studio Warner Bros said it was gratified by the decision, which would allow the highly-anticipated comedy to be released on schedule this week around the world.

"(The) 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," Warner Bros said in a statement.

Victor Whitmill, the tattoo artist who created the original tattoo for boxer Mike Tyson, who appears in both "Hangover" films, sued on April 28 seeking an injunction and damages for copyright infringement.

Warner Bros. executives Dan Fellman and Sue Kroll testified at a hearing on Monday that issuing an injunction against the film's release would inflict irreparable harm on the studio, which has spent more than $80 million to market the film.

U.S. District Court Judge Catherine D. Perry. agreed with the studio, denying the injunction but allowing the case to move forward.

She did say that Whitmill had a strong likelihood of ultimately succeeding on the merits of the case but that the hardship on the studio and the third-party theater owners who planned to screen the film this weekend would simply be too great.

Whitmill said she was willing to hold an expedited trial on the issue of liability and consider a request for a permanent injunction, which could stop the film's distribution (on DVD, cable and other outlets) at a later date.

In Monday's hearing, it was said by a Warner Bros. lawyer that Whitmill asked Warners for a $30 million settlement. But lawyers for Whitmill argued that the $30 million demand came up only after Warners was asked for an assessment of what the studio's potential damages exposure might be.

Now, without the leverage of a possible injunction hanging over the studio's head, the tattoo artist is unlikely to be offered a fraction of that to settle the case.

Whitmill's attorney Geoffrey Gerber said in a statement;

"While we are disappointed that the motion was denied, we are quite pleased by Judge Perry's findings that Mr. Whitmill proved a 'strong likelihood of success' on the merits and that most of Warner Bros. defenses were 'just silly.'

"Judge Perry recognized copyright law protects tattoos and that Warner Bros. had no permission to use Mr. Whitmill's artwork in the movie. We look forward to further vindicating our client's rights at trial in the near future, including a permanent injunction preventing further distribution of the movie."

(Editing by Jill Serjeant)

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