A tattoo artist came within days of stopping The Hangover Part II: Indie filmmakers, here’s the clause that could save your film
Additional reporting by Santiago Steiner
Days before The Hangover Part II was due in cinemas, a freelancer nearly stopped it cold. Remember that scene where actor Ed Helms’ character wakes up after a wild night out with a tattoo on his face? Well, that tattoo design had some history.
According to news reports and court filings, tattoo and visual artist S. Victor Whitmill filed a lawsuit against Warner Bros., arguing the film reproduced his copyrighted tattoo design created for former Heavyweight boxing champion Mike Tyson on actor Ed Helms’ face and promotional materials without permission. Whitmill sought an injunction to block the release. As we know, the film went ahead. It made a killing at the Box Office ($586m+). In the end, the studio made an undisclosed settlement with Whitmill.
However, without a special no-injunction relief clause in all contracts, most independent filmmakers wouldn’t be so fortunate.
A major studio can absorb the legal fees and keep its release date intact. An independent filmmaker, or any freelancer whose income depends on one project reaching the finish line, often can’t.
In this article, you’ll learn how to safeguard your independent film through a solid understanding of how injunctions work. That will include being able to:
- Recognise what legal grounds make them valid
- Appreciate their catastrophic financial ripple effects
- Implement a contractual safeguard
That dreaded phone call
For an independent filmmaker, few phone calls induce more dread and frustration than one from a production attorney confirming that an injunction has been served. Instantly, camera gear is locked away, cast and crew stand idle on full pay, location permits freeze and distribution pipelines grind to a halt. While major studios may have the capital and legal resources to withstand court-ordered freezes, an injunction served on an independent feature can easily trigger insolvency.
In film production, an injunction usually takes the form of an interim “prohibitory order”. This order immediately stops principal shooting, prohibits the use of specific creative materials or blocks the commercial exhibition and distribution of the finished picture.
An unhappy party, whether it’s an investor, co-producer, actor, screenwriter, crew member or third-party copyright holder, can file an urgent application for an interim injunction. If the claimant demonstrates that there is a serious issue to be tried and that damages alone would not be an adequate resolution, a judge can grant an emergency court order within 24 to 48 hours.
In more urgent circumstances, an injunction can be sought ex parte or in layman’s terms, from one side only. This means one party may not even be informed or have their side of the situation heard. If approved, this would blindside the entire production crew, forcing them to stop production.
✅What are valid grounds for injunctions?
The idea of someone taking your work away from under you with little to no warning is understandably terrifying. In the Whitmill-Warner Bros. tattoo example, it worked both ways.
However, it is reassuring that courts do not take injunctions lightly. There have to be valid grounds for injunctions. Here are the common ones:
Personality & publicity rights
This is when a movie uses someone’s face, name, or identity without asking first — whether or not the film actually makes money off it. How easy it is to sue over this depends a lot on where you are. In the UK, there’s actually no special law just for image or personality rights, so people have to use other laws instead, like privacy rules or “passing off” (basically, pretending you’re connected to someone when you’re not). But in other countries it’s different: in Germany, people have a general right to control their own image and courts can quickly block something with an injunction, and in France, courts have always said people get to control how their image is used. So the same footage could get blocked in Germany or France but be totally fine in the UK.
Copyright & plagiarism
This is when someone says a script, music, or effects were copied from their work. In the UK, if you own the rights, you can ask a court to block the film, temporarily or for good. You can attempt this under the Copyright, Designs and Patents Act 1988.
EU countries have similar laws. For example, France’s copyright law is written into its own legal code, which follows EU rules too. So a copyright fight over a script or song could lead to a block in the UK, the EU, or both. This could prove tricky for productions made in both places.
Contractual breaches
This is when people working on the film, including producers, investors or distributors, have a dispute with each other. This might be when an investor might think someone broke a promise about who’s allowed to work on the film, how profits get paid out, or who has final say on the movie’s edit. If that happens, the investor could attempt to get a court order stopping the film from moving forward to protect their money. This happens often enough that many investment contracts now do the opposite on purpose in the form of a no equitable relief clause. It’s when investors agree upfront to give up their right to stop the film and accept just being paid money instead if something goes wrong.
Defamation & privacy concerns
This is when a film shows a real person in a way that damages their reputation or invades their privacy. This can pertain to life story rights in the UK.
UK courts have to weigh this against free speech rules, but stopping a film from being shown is a genuine option when someone has a strong enough case.
A good example of how serious this can get is the European Court of Human Rights case Von Hannover v. Germany, where the high-profile people involved said German courts were wrong not to stop more photos of them from being published, since it violated their right to privacy. It shows that privacy court cases like this are a big deal not just in the UK, but across Europe too.
✅How to keep up crew morale
The impact of an injunction can quickly spiral. Once an injunction is granted by a court, this could result in an immediate halt to filming, which means you would then be faced with costs for the cast, crew and rented equipment while they sit idle until production is cleared (if it’s cleared).
If you’re lucky and can resume production, be conscious of momentum and morale loss among the cast and crew. Stopping the production suddenly and creates a sense of insecurity. You might lose crew and cast because of overlapping future commitments.
✅Sample of a no injunction relief clause
To protect your set, here is a basic understanding of the clause that your lawyers should be putting in all your contracts.
An example of what could be used in an injunction relief clause within the film industry:
“In the event of any breach or alleged breach of this Agreement by Producer, Contractor/Participant’s sole and exclusive remedy shall be an action at law for monetary damages suffered, if any. Contractor/Participant expressly waives any right to seek or obtain injunctive, equitable, or other restraining relief against the development, production, exhibition, distribution, advertising, or exploitation of the Motion Picture.”
Research source: Law Insider
By signing the agreement, all accepting parties surrender the right to a future injunction or court order relating to production of the film. Instead, in the case of a disagreement or violation of code, the unhappy party’s only option is to seek recompense through arbitration outside of the production.
You may think you know your cast, crew and supporters, but be mindful that a person holding as little as a £5,000 dispute can threaten a production.
Chris Edgar, a lawyer involved in filmmaking, offers scenarios on why a person may try to file an injunction and how to protect your film and its distribution:
Here are some examples of injunctions granted (Amazing Grace, Skynyrd, Jenin Jenin, The Room) and injunctions sought but denied (Hangover II/settled, Hulk Hogan estate, Lil Wayne).
DISCLAIMER/ Note to readers
This article is for informational purposes only and does not constitute formal tax, legal, or financial advice.