Posts by Rachel Valadez

Rachel Valadez's practice focuses on entertainment and media litigation, with particular emphasis in profit participation, the videogaming industry, and general intellectual property and contract disputes. Rachel has experience in all phases of litigation as well as providing her clients with legal counseling related to all aspects of their businesses.



Law Law Land’s Rachel Valadez on Barely Legal Radio

Last week, we posted an interview our own Aaron Moss gave to entertainment lawyer/punk bassist/radio host extraordinaire Joe Escalante’s Barely Legal Radio program, about Newegg.com’s recent battle with Best Buy over the Internet retailer’s latest television advertisements. In our post, we made reference to an interview our Rachel Valadez previously gave about the Mike Tyson/Hangover 2face tattoo lawsuit filed early last month. But then we realized: we never actually provided you with the interview…how rude of us!

Plenty has happened in the case since Rachel’s post and interview first went live. In late May, U.S. District Court Judge Catherine D. Perry refused tattoo artist S. Victor Whitmill’s request to block the release of The Hangover 2 and its associated advertising — but, in a decision that surprised many legal observers, Judge Perry based her ruling on the harm that an injunction would have caused, and held that Whitmill had shown a “strong likelihood of success” on the merits of the case. Although it had averted the disaster scenario of a release-blocking injunction, Warners was skittish enough about the case to announce, roughly two weeks later, that it would be digitally scrubbing Ed Helms’ Tyson-inspired tattoo from the DVD release of the film. Finally, last week, the parties announced a settlement that would allow the tattoo to remain in place in all future versions and releases of the picture.

Even though the case is now settled, though, Rachel’s interview provides some interesting insights about the quirks of copyright law, the realities of high-stakes litigation, and the craziness that results when parties start arguing over ownership of the content of a person’s skin. We invite you to check it out:

Rachel Valadez

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The Hangover 2 and the Tyson Tattoo: Lessons in Copyright, Contract, and Clearance

This month, the legal blogosphere has been all atwitter about aMissouri tattoo artist’s lawsuit against the studio behind The Hangover 2, and the artist’s attempt to stop not only the release of the film, but even block the studio’s ads and promotional materials. In case you aren’t up-to-date on your face art-related news (there’s just so much out there!), let’s catch you up: St. Louis tattoo artist S. Victor Whitmill has sued Warner Bros. claiming that a tattoo featured on the face of one of The Hangover’s main characters, Stu Price, played by Ed Helms, infringed Whitmill’s copyright in a very similar tattoo he placed on boxing-champ Mike Tyson’s face back in 2003. A cursory comparison of the two tattoos shows how strikingly similar they are, and when coupled with Whitmill’s allegations, perhaps how worried WB should be. (Hat tip to TMZ for the side-by-side comparison.)

Whitmill alleges that in 2003 he created “one of the most distinctive tattoos in the nation” — one that looks nothing like a facial version of the tramp stamp gracing the lower back of half of the current denizens of Hollywood nightclubs — by placing an original “tribal tattoo” (the registered name of the copyrighted work) on the upper left side of Tyson’s face. At the time he applied the tattoo, Whitmill apparently had Tyson sign a release (attached as an exhibit toWhitmill’s complaint). Although the release primarily contains typical tattoo/piercing CYA language (the signing client represents they’re over 18, not under the influence of drugs or alcohol, etc.) it also contains a provision stating “I understand that all artwork, sketches and drawings related to my tattoo and any photographs of my tattoo are property of Paradox-Studio of Dermagraphics” (Whitmill’s d/b/a, which pretty ingeniously linguistically science-ifies tattoo artistry).

While Whitmill’s release language seemingly purports to grant him ownership of any image of Tyson in which the tattoo is displayed (the actual photographers might have something to say about that, I think), Whitmill kept silent as Tyson and his tattoo made their big cameo in 2009’s summer juggernaut, The Hangover. It wasn’t until a look-a-like tattoo appeared on Ed Helms’ (extremely pained-looking) face in ads for The Hangover 2 that Whitmill decided to bring an infringement claim. And already, bemused legal eagles are wondering if it’s “the best copyright complaint ever.” Continue reading the full story . . . »



Double Trouble: What Black Swan, The Exorcist, and Maria from West Side Story Have in Common

Even before Natalie Portman won her Best Actress Oscar for her role in Black Swan, critics and audiences alike were buzzing about her disturbing performance as a dedicated-but-delusional prima ballerina. Recently, however, the discussion of Portman’s performance has taken a turn towards the controversial, as Sarah Lane — an American Ballet Theater soloist and one of Portman’s Black Swan dance doubles — has emerged with allegations that Portman did just 5% of the full body dance shots seen in the finished film.

Lane claims she is the victim of a “cover-up” by the filmmakers. Although she commends Portman for trying “to go method” and losing “a lot of weight” for the film, Lane blasts her single’s dancing (if Lane is Portman’s double, doesn’t that make Portman Lane’s single?), saying Portman didn’t look “at all” like a professional dancer and couldn’t even dance in pointe shoes. Lane’s comments came just days after Portman’s choreographer-slash-baby-daddy Benjamin Millepied boasted to the Los Angeles Times that Lane did only a very minimal amount of dancing in the film and that “Honestly, 85 percent of that movie is Natalie.” Since Lane made her “5%” claim, however, the film’s producers, director and co-stars have come to Portman’s defense, with director Darren Aronofsky issuing a statement yesterday saying that of the 139 dance shots in the film, 111 — or, 80% — are Portman untouched, and when you consider screen time, 90% of the dancing is Portman.

Even if all the “did she or didn’t she” discussion surrounding Portman’s Oscar and dance performance misses the real issue — namely, that this should have been Annette Benning’s year — it did get me thinking about the use of doubles in film, and what potential legal claims actors and their doubles might have when situations like this arise. Continue reading the full story . . . »



The Tarnished Era of the Golden Globes

With weeks of double-page “For your consideration…” ads in Varietyand The Hollywood Reporter finally culminating in yesterday’s Golden Globes nominations announcement — about which I have nothing to say other than “at least 3, if not 4, of the nominees for Best Comedy or Musical are neither comedies nor musicals…I mean, seriously, The Tourist?” — Hollywood’s awards season has officially kicked into high gear. As a fan of TV, movies, pop culture, and pointy-headed overanalyzation in general, I’ve always enjoyed awards season (minus the extra traffic congestion that comes from living down the street from Grauman’s Chinese and the Kodak Theater).

Sure, maybe us entertainment lawyers seldom make it into the acceptance speeches (damn agents get all the credit). And certainly no one has ever memorably crowed “you like me! you really like me!” to a studio director of business and legal affairs. (If Spielberg would have won for Jaws in ’76, maybe he’d have thanked his lawyer, Bruce Ramer — after whom Spielberg supposedly named “Bruce,” the mechanical shark featured in the film — but unfortunately for the entertainment legal community, Spielberg never made it to the podium. I guess Spielberg himself might have been a little bummed about it as well.) As it turns out, though, the apparently legally-cursed Globes represent the one awards show whose recent history has provided several opportunities for us entertainment lawyers to get in on the awards season fun.

(Given the economy, I suspect lawyer voodooists trying to drum up business. J’accuse.) Continue reading the full story . . . »



Lessons From the Legal Saga of Dora the Explo(rer/iter/ited)

Your average litigator has a standard checklist of issues to ponder before filing a lawsuit. Considerations such as whether the defendant has had enough minimum contacts within the judicial forum, whether one has alleged sufficient facts to state a claim on which relief can be granted, and what to get for lunch at the courthouse coffee shop when dropping off the complaint usually predominate the lawyer’s thought process. But because being a good entertainment lawyer sometimes means being a public relations guru, any litigator who is preparing to file a lawsuit touching on the entertainment industry — or on any topic likely to capture the public’s attention, and thus media interest — must take into account an entirely separate list of considerations if the lawyer is going to do his or her job properly. Continue reading the full story . . . »



Glee-ful Evolutions in Copyright and Distribution

They say the first step to recovery from addiction is to admit that you have a problem. Well…my name is Rachel Valadez, and…I’m a Gleek.

The hideousness of that term aside, the show has been a favorite of mine since it debuted in May 2009, enjoying a hallowed status as the one show a week for which I regularly give my DVR a rest and (gasp!) watch live (simultaneously reintroducing me to the exhilaration of trying to get a glass of wine and a snack during a single commercial break). But this post isn’t about trying to convince you that Glee is so much more than re-imagined karaoke music videos (it is), or that a show where the characters spontaneously burst into song is capable of actual character development and witty, self-aware humor (check and check). Instead, I thought I’d use my first of twelve steps to see what practical, entertainment law related lessons I could Glee-n (sorry, I get one) from this pop-culture juggernaut. [Ed. note: groan.] Continue reading the full story . . . »