Whitmill v. Warner Bros. Entertainment Inc.

Filing 29

RESPONSE to Motion re 2 MOTION for Preliminary Injunction (Redacted) filed by Defendant Warner Bros. Entertainment Inc.. (Attachments: # 1 Exhibit 1 - Schultz Declaration (Filed Under Seal), # 2 Exhibit 2 - Wheeler Declaration, # 3 Exhibit 3 - DVD: The Hangover I, # 4 Exhibit 4 - Kroll Declaration (Filed Under Seal), # 5 Exhibit 5 - Fellman Declaration (Filed Under Seal), # 6 Exhibit 6 - Part 1 - Nimmer Declaration, # 7 Exhibit 6 - Part 2 - Nimmer Declaration)(Sableman, Mark) Modified on 5/23/2011 - to file Exhibit 1 under seal per attorney's request (TRC).

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EXHIBIT 6 as the "medium of expression" that Congress intended to allow as the substrate to secure copyright protection, copyright protection still must be denied to tattoos. E. Effect of Copyright in Artwork on Tattoos 49. Plaintiff Whitmill inked the subject image in this case directly onto Mike Tyson. The discussion set forth above has considered the precise circumstances of this case. But it is also worth exploring what this case is not. The instant claim differs fundamentally from one involving creation by an artist of an image, such as the one portrayed in Figure 6: Figure 6 Ferocity 50. That painting is a pictorial work. Assuming it results from original expression (as opposed to being copied from antecedent sources), then Figure 6 may qualify for copyright protection. That painting is wholly separate from anyone's body. It therefore poses none of the invidious consequences catalogued above. 51. A different case would arise to the extent that a tattooist first created an image as a template, before inking the subject individual. Even in that case, however, the image would give the tattooist no right to control application of that same image to other individuals, for the reasons set forth below. - 13 -

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