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IP/Entertainment Case Law Updates

Cramer v. Netflix, Inc.

District court grants Netflix’s motion to dismiss copyright action brought by tattoo artist, holding that Netflix’s use of image of a tattoo plaintiff designed in Netflix series Tiger King constituted fair use.

After the tattoo shop she owned with her husband was forced to close during the COVID-19 pandemic, plaintiff Molly Cramer and her husband ran an online contest to help sell gift certificates. Purchasers of gift certificates could vote on one of several funny pictures and plaintiff would tattoo the winning picture on her husband’s thigh. The winning picture featured the face of Joe Exotic, the subject of Netflix’s 2020 documentary series Tiger King, alongside a depiction of five COVID-19 viruses, a can of Lysol disinfecting spray and a toilet paper banner with the words “Quarantine 2020.” As promised, plaintiff tattooed the winning image on her husband’s thigh. The contest raised around $4,000, enough for plaintiff and her husband to reopen the tattoo shop. 

In the first episode of the second season of Tiger King, an image of the tattoo is featured for 2.2 seconds in an eight-way split screen. The split screen also features other fan-created images, such as an image of a fake baseball card showing Joe Exotic as a Detroit Tigers player, internet memes featuring Joe Exotic and an image of Donald Trump’s face that had been altered to feature Joe Exotic’s distinctive blond mullet and facial hair. The split screen appears in an approximately three-minute-long montage featuring other clips and images relating to the COVID-19 pandemic and the public’s reaction to Season One of Tiger King. The remaining 40 minutes of the episode focus on the various individuals who had taken up Joe Exotic’s quest to obtain a pardon from then-President Trump. 

After learning that an image of her tattoo had been featured in the series, plaintiff sought and received consent from Joe Exotic to use his likeness in the tattoo on social media. After obtaining a federal copyright registration for the image, she brought suit alleging a single count of copyright infringement against Netflix and Royal Goode Productions LLC, the producer of Tiger King. Defendants moved to dismiss the action on the grounds that its use of the tattoo constituted fair use. 

The court first looked at whether defendants’ use of the image was transformative. Plaintiff’s stated purpose for creating the tattoo was to “capitalize on Joe Exotic’s popularity, notoriety, fame, and global recognition in order to sell gift certificates.” Defendants’ purpose in using the image was to “include images and footage from some of the more strange online postings relating to the [Tiger King] Series and to Joe Exotic, as a means to give the audience a sense of the nature and scale of the public’s bizarre reaction to the Joe Exotic phenomenon.” The court agreed with defendants that this use, in the context of the audio and visual narrative describing the onset of the pandemic and the public’s reaction to the series, constitutes “criticism,” “comment” or “reporting,” and therefore falls within the core of what courts and Congress have most commonly considered to be fair use. Plaintiff argued, and the court agreed, that both she and the defendants were using the image of Joe Exotic for the same purpose—to exploit his story and his newfound fame. Any similarity between the purpose of plaintiff’s use and of defendants’ use, however, was because plaintiff’s tattoo was “created to capitalize on the portrayal of Joe Exotic created by the Defendants’ series”—not vice versa.

The court compared the case to the U.S. Supreme Court’s recent decision in Andy Warhol Foundation for the Visual Arts, Inc. v. Goldsmith, which was issued while defendants’ motion to dismiss was pending. Warhol involved a suit by a photographer over Andy Warhol’s use of her photograph of Prince in his silkscreen print. (Read our summary of the Supreme Court opinion here. In Warhol, the Supreme Court held that the photographer’s use and Warhol’s use shared the same purpose: to be commercially sold as portraits of Prince in magazine stories about Prince. The Supreme Court noted that, by contrast, Warhol’s famous prints featuring cans of Campbell’s Soup constituted fair use; there, the Court held, “the use of the copyrighted work not only serves a completely different purpose, to comment on consumerism rather than to advertise soup, it also ‘conjures up’ the original work to ‘she[d] light’ on the work itself, not just the subject of the work.” The district court in Cramer reasoned that defendants’ use of plaintiff’s tattoo was more like Warhol’s Campbell’s Soup prints than it was like Warhol’s Prince print: Defendants’ purpose in using the image was not to sell or advertise tattoos but rather to use the image to comment and shed light on the public’s reaction to the series. Defendants’ use of the tattoo was therefore independent from plaintiff’s original purpose and “neither supersedes the object of the Tattoo nor serves as a substitute.”

The court then held that the nature of the work was creative, and therefore the second fair use factor weighed in favor of plaintiff. This second factor was given little weight, however, due to the court’s finding that defendants’ use was transformative. The court found the third factor, the amount and substantiality of the portion of the work used, favored fair use because defendants’ use was appropriate for defendants’ transformative purpose of showing the public’s reaction to Tiger King. Additionally, the fourth factor, the effect of the use on the potential market for or value of the copyrighted work, weighed in favor of defendants because the products sold by each party were completely different: for plaintiff, tattoos, and for defendants, a streaming media service. Moreover, plaintiff had not alleged that the market for her tattoos had diminished due to defendants’ use of the work.

Because three factors weighed in favor of finding fair use—and particularly because the court found that defendants’ use was transformative—the court granted Netflix’s motion to dismiss.

Summary prepared by David Grossman and Erin Shields

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