Just as COVID-19 lockdowns were beginning, Netflix released the wildly successful Tiger King: Murder, Mayhem and Madness television series.
The documentary, often described as a “train wreck,” is about big-cat owners Joe Exotic, Carole Baskin, and Doc Antle, focusing on the events leading up to Joe Exotic’s conviction for paying a hitman to murder Carole Baskin.
During the lockdowns, tattoo-shop owner Molly Cramer ran a promotion to help generate income to reopen her shop when lockdowns ended. Customers who bought gift certificates for future services could vote on a tattoo design to be inked onto Cramer’s husband’s thigh.
The winning design featured a depiction of Joe Exotic’s face, along with images of a can of Lysol, COVID-19 viruses, and a toilet paper banner reading “Quarantine 2020.”
The first episode of the second season of Tiger King, released in November 2021, begins with a montage of clips from and reactions to season 1 of the show. That nearly three-minute montage displays a photo of the Joe Exotic tattoo as one-eighth of a split screen for less than three seconds.
Cramer filed suit against Netflix and the documentary’s producer, Royal Goode Productions, alleging copyright infringement. The defendants argued that their use of the tattoo was fair use and did not infringe Cramer’s copyright.
The term “fair use” isn’t defined by the copyright statute. Rather, the statute says that in order to determine whether copying is a fair use, at least the following four factors must be considered:
(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
(2) the nature of the copyrighted work;
(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
(4) the effect of the use upon the potential market for or value of the copyrighted work.
In considering the merits of Cramer’s lawsuit, the court analyzed these four factors, concluding that Netflix and Royal Goode had not infringed Cramer’s copyright and that their inclusion of the tattoo in the montage is fair use.
The court observed that the tattoo was part of a compilation “depicting the public’s overwhelming fascination with and reaction to Joe Exotic in the early days of the pandemic” and found the defendants’ use to be a “transformative” one.
For this reason, the court held that the first factor (purpose and character of the use) strongly weighs in favor of fair use.
With respect to the second factor (nature of the original work), the court recognized that the tattoo is creative but gave this factor little weight because the defendants’ use is transformative.
Regarding the third factor (amount and substantiality of portion used), the court acknowledged that Netflix displayed the tattoo in its entirety (if only for a few seconds), but concluded that the third factor favors fair use because the defendants’ use “is appropriate to” the defendants’ “transformative purpose of showing the public’s reaction to Season One of the Tiger King series,” and their use of the tattoo doesn’t harm the market for Cramer’s services.
Because the small image of the tattoo shown on the screen “is plainly no substitute for” the tattoo, and the defendants’ use “in no way usurps the market” for the tattoo, the Court ruled that the fourth factor (effect on the potential market or value of the original work) also favors fair use.
After reviewing these four factors, the court dismissed Cramer’s case.
Although the defendants in this case were successful, you should be extremely careful relying on the fair use defense.
Because there are no “bright line” rules defining fair use, a court must weigh various factors on a case-by-case basis. Even the courts have difficulty coming to agreement on whether a given use is a fair one, making it difficult – if not impossible – to know in advance whether a particular use will ultimately be deemed fair or infringing.
Further, fair use is merely a defense to a lawsuit, which means that you’ll have to spend time and money defending that suit. Unless you can prove the case was frivolous, you won’t be entitled to recover your expenses.
In most cases, instead of relying on fair use, it would be more sensible to initially contact the copyright owner and request permission to use the work, either for free or for a payment. If music is involved, there may be a so-called “compulsory license,” but this license only covers certain situations and requires strict adherence to the rules.
Please feel free to contact us if you’re in doubt as to whether your copying of someone else’s work – or their copying of your work – is likely to be found a fair use or an infringement, or if you need help obtaining a license to use someone else’s work.
For more information about copyright law, see Art Law in a Nutshell, co-authored by members of this law firm. This book is available from West Academic and Amazon.
Photo by Jose Almeida on Unsplash
