Use of eight seconds of children’s song “Fish Sticks n’ Tater Tots” in documentary film depicting burlesque dancer in “reverse mermaid” costume was held to be transformative fair use, leading to dismissal of copyright infringement action against Netflix, Amazon and Apple.
Songwriters Tamita Brown, Glen S. Chapman and Jason T. Chapman sued Netflix Inc., Amazon.com Inc. and Apple Inc., alleging that the media companies directly and indirectly infringed their copyright in a children’s song titled “Fish Sticks n’ Tater Tots” by distributing and streaming a documentary film titled Burlesque: Heart of the Glitter Tribe that incorporates a portion of the song without authorization. Plaintiffs’ song describes a student’s journey from her classroom to her school cafeteria to eat fish sticks and tater tots for lunch. The film chronicles the stories of burlesque dancers in Portland, Oregon, through interviews, backstage preparations and on-stage performances. One of the scenes depicts a performance in which one of the dancers, first dressed as a “reverse mermaid”—with the head of a fish and the legs of a woman—changes into brown pants and steps from behind a sign labeled “hot oil” to appear as though she has been transformed into a fish stick. During this performance, eight seconds of the song is played, including the lyrics “fish sticks n’ tater tots” sung five times.
Defendants jointly moved to dismiss the claims against Netflix and Apple pursuant to Federal Rule of Civil Procedure 12(b)(6), and for judgment on the pleadings on the claims against Amazon pursuant to Rule 12(c), arguing that the presence of the song in the film was fair use. The court first rejected plaintiffs’ threshold argument that any determination of fair use was inappropriate at the pleadings stage, citing Second Circuit authority permitting a fair use inquiry on a Rule 12 motion where the necessary facts are evident on the face of the complaint. The court then applied the four fair use factors—the purpose and character of the use; the nature of the copyrighted work; the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and the effect of the use upon the potential market for or value of the copyrighted work—and found that three weighed in favor of defendants, while one was neutral.
With respect to the first factor, plaintiffs argued that the use of the artwork was not transformative, because the song itself was unaltered in the film and the subject of both works is fish sticks. The court rejected this argument, explaining that in order to preclude a finding of fair use, the secondary use must not only copy the raw material without alteration but also duplicate the purpose behind the original. The court found defendants’ use of the song to be sufficiently distinct from the song’s original purpose and character to warrant a finding of transformation, as the song communicates a lighthearted children’s story, while the film depicts mature themes that portray fish sticks not as a lunch food but as a component of a reverse mermaid. The court did not determine whether the film was for a commercial or nonprofit educational purpose, finding that even if it were purely commercial, the film’s transformative use placed the first factor in defendants’ favor.
As to the second factor, plaintiffs argued that the song’s intended use for creative expression for public dissemination combined with the defendants’ use without justification weighed against a finding of fair use. The court held that, regardless of plaintiffs’ characterization of the song, the transformative nature of the film rendered the second factor of “limited usefulness” and provided sufficient justification for the secondary use.
The court found that the third factor weighed in favor of fair use, as the portion of the song used in the film was neither quantitatively nor qualitatively excessive. The film used only eight seconds (or 4.21%) of the 190-second song, such that the use was quantitatively minimal. The court next considered the film’s qualitative use of the song. Relying on the Second Circuit’s 2013 decision in Cariou v. Prince, the court stated that use of the “heart of a work is permissible when it is necessary to achieve its transformation” and found that the film’s use of the heart of the song—the phrase “fish sticks and tater tots”—was required in order to communicate the transformation depicted in the film: the dancer’s change from a mermaid into a fish stick.
The court found that the final factor weighed decisively in favor of defendants, as there was no danger that the film’s transformative use would usurp the market of the song. Citing the Second Circuit’s 2015 decision in Authors Guild v. Google, Inc.—which found that an online service which allowed users to view snippets of books did not create a competing substitute for the books—the court reasoned that the film’s target audience (adults) is sufficiently distinct from the song’s target audience (children, or those who would acquire the song on behalf of children) to avoid any overlap in market share. Based on that reasoning, the court also rejected plaintiffs’ argument that permitting a finding of fair use would preclude them from participating in additional segments of the music industry, since, like the film’s secondary use, other similarly hypothetical uses would “equally not deprive” plaintiffs of prospective audiences.
Ultimately, after finding that three of the four fair use factors favored defendants, the court held that the fair use defense barred plaintiffs’ direct copyright infringement claims. Absent any direct infringement, the court dismissed plaintiffs’ secondary claims for inducement of copyright infringement, contributory copyright infringement and vicarious copyright infringement.
Summary prepared by Tal Dickstein and David Forrest