IP Law Daily, COPYRIGHT—W.D. Pa.: Where a TV show imitates artwork that imitates a TV show, is it fair use?, (Sep 19, 2023)

By Matthew Hersh, J.D.

A copyright infringement lawsuit against the makers of the Tiger King series is dismissed on the pleadings.

A popular COVID-era television series that showed a brief glimpse of a fan-made tattoo in order to help document the popularity of the series itself engaged in a fair use of the tattoo and therefore could not be the basis for a copyright infringement claim, the federal court for the Western District of Pennsylvania has held. The court, taking the relatively rare step of entering judgment on fair use grounds even before the discovery stage, emphasized that it was able to reach a decision by simply comparing the tattoo to the allegedly infringing episode and that no party had identified any other facts that it might learn in discovery that could change the outcome (Cramer v. Netflix, Inc., September 18, 2023, Haines, S.).

The lawsuit arises out of Tiger King, the popular Netflix television series that chronicled the life of the zookeeper and convicted felon known to his fans as Joe Exotic. A Pennsylvania tattoo artist named Molly Kramer, no doubt after joining millions of Americans in binge-watching the show during the first few weeks of the COVID lockdown, tattooed onto her husband’s thigh a depiction of Joe Exotic along with a Lysol aerosol can, five different types of viruses, and the words “Quarantine 2020.” She posted an image of the tattoo on her Facebook page the same day.

It is at that point that, as one might say, art began to imitate life that imitated art. In 2021, with the pandemic beginning to recede from view, the producers of Tiger King decided to put out a second season of the show. The first episode of that season opened with a retrospective look at the fanfare that the first season of the show had caused, replete with TikTok videos, clips from the Joe Rogan show, and a video from a press conference in which then-President Trump made a Joe Exotic reference. Then, at 58 seconds into the episode, an 8-way split screen montage appears in which the tattoo appears at the bottom left corner for about two seconds.

The tattoo artist brought a copyright infringement lawsuit against Netflix as well as Royal Goode Productions, the production company responsible for the show. Netflix and the production company moved to dismiss, leading to this opinion.

Fair use. The court granted the motion to dismiss, finding that Netflix and the production company had established the defense of fair use from the face of the complaint and the incorporated materials.

The court found that the first factor, the nature and purpose of the use, tilted strongly in favor of fair use. To be sure, the court noted, both the tattoo artist as well as Netflix sought to exploit the popularity of the first season of Tiger King. But they did so in very different manners. Where the tattoo was shown onscreen, the court noted, it appeared as only a fraction of a split-screen montage comprised of other Tiger King-related fan art images, “including an internet meme with Homer Simpson, a fake cover of the teenager Tiger Beat magazine cover featuring Joe Exotic, a face merge of Donald Trump’s and Joe Exotic’s faces, and an image of a fake baseball card showing Joe Exotic as a Detroit Tigers player.” The purpose and character of this use, the court noted, was as part of a compilation “depicting the public’s overwhelming fascination with and reaction to Joe Exotic in the early days of the pandemic.” It thus constituted the type of criticism, commenting and reporting that is “expressly defined as fair use,” the court reasoned.

The other fair use factors did not change the outcome. The nature of the tattoo artist’s work was of course creative, the court noted, but that weighed only slightly in her favor in the fair use analysis. The entire image was also taken, the court noted, but that was “appropriate” in light of Netflix’s transformative purpose of showing the public reaction to the first season of the show. As to the fourth factor, the effect on the market for the original, the court noted, nothing in the complaint gave rise to any meaningful suggestion that demand for the TV series would usurp the original. “Plaintiff and Defendants have wholly unrelated products and different marketing channels,” the court noted.

Procedural posture. The court also noted that while it was rare to grant motions to dismiss on the grounds of fair use, it would be appropriate to do so here. To be sure, the court noted, fair use is “an undeniably fact intensive, context specific inquiry” that is traditionally not ripe for decision until the summary judgment stage. However, the court noted, the parties had submitted the image of the tattoo, the documentation supporting the artist’s copyright of the tattoo, and a full copy of the allegedly infringing episode—all of which were integral to the complaint and could be considered on the motion to dismiss. Moreover, the court noted, the tattoo artist had failed to cite to any example of discovery that would “aid, inform, or be relevant to” a fair use analysis. Thus, the court noted, it would be proper to grant judgment to Netflix and the production company as a matter of law.

The Case is No. 3:22-cv-00131-SLH.

Attorneys: Gwendolyn R. Acker Wood (Acker Wood Intellectual Property Law, LLC) for Molly Cramer. Russell Smith, I (Smithdehn LLP) for Netflix, Inc. and Royal Goode Productions, LLC.

Companies: Netflix, Inc.; Royal Goode Productions, LLC

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