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In Brief: Fleeting use of a creative work for the purposes of commentary is fair use.
Here’s What Happened:
In the spring of 2020, during the world-wide pandemic caused by the Covid-19 virus, many found solace in watching the Netflix docuseries, Tiger King. The series focused on a big cat breeder in Oklahoma, Joseph Allen Maldonado-Passage (aka "Joe Exotic") and his arch-nemeses, self-styled animal rescuer, Carole Baksin. Carole accused Joe Exotic of animal abuse and exploitation. Their rivalry played out with intrigue that captivated viewers. For the few who did not watch the series, there will be no spoilers here.
Meanwhile, Molly Cramer, the owner of a tattoo parlor had to shut down due to the threat of transmission of the virus. To generate income during the lock-down, Molly ran a promotion involving gift certificates. Every customer who bought a gift certificate could vote on several tattoo designs created by Molly. The winning design would be inked onto Molly’s husband’s thigh. The winning image was one of Joe Exotic, encircled by floating corona viruses, a can of Lysol, and a toilet paper banner that read "Quarantine 2020." Molly sold nearly $4,000 worth of gift certificates. The Joe Exotic design won and, true to her word, her husband now displays it on one of his thighs (reports did not identify which one).
In November 2021, Neflix released a second season of Tiger King. The first episode of season 2 featured a montage of mirages and clips from season 1 and footage of the fans expressing their reaction to the show. One of the images was Molly’s Facebook page photo of her Joe Exotic tattoo design. It was on air for all of 3 seconds.
Molly demanded that Netflix pay her $10 million (later reduced to $50,000) for use of the photo. When Netflix spurned her demands, she brought suit for copyright infringement. Netflix filed a motion to dismiss. It didn’t take long for the court to grant Netflix’s motion based on fair use.
The court analyzed the four factors of fair use:
1. Purpose and Character of the Use. Netflix used the image as "as part of a visual and auditory compilation depicting the public’s overwhelming fascination with and reaction to Joe Exotic in the early days of the pandemic". This constitutes criticism, comment or reporting. Because Netflix's use of the tattoo image was "independent from" Cramer's original purpose for creating it, "Netflix's use neither supersedes the object of the Tattoo nor serves as a substitute." In other words, Netflix’s use of the photo was transformative. So this factor weighed in favor of Netflix.
2. The Nature of the Copyrighted Work. Both parties agreed that the tattoo design was a creative work. But, this factor had limited value because of the transformative nature of Netflix’s use. So this factor was probably considered neutral.
3. Amount and Substantiality of the Portion Used. Although Netflix used the entire image, it was shown with other images and was on screen for less than 3 seconds. Use of the entire image was necessary to make the point about the public’s reaction to the Tiger King. This factor weighed in favor of Netflix.
4. The Effect of the Use Upon the Potential Market for or Value of the Copyrighted Work. Here, again, the court concentrated on the transformative nature of Netflix’s use. Molly sells tattoos and gift cards for her business. Molly didn’t allege that those sales were impacted by Netflix’s use of a photo of the design. This factor weighed in favor of Netflix.
The court granted Netflix’s motion to dismiss because there didn’t seem to be any need for discovery.
Why You Should Know This: There are two major points here. First, Molly’s case suffered from Netflix’s de minimus use of her tattoo design for a purpose that is protected by fair use. Second, Netflix’s use of the design didn’t affect Molly’s business.
Case Information: Cramer v. Netflix, Inc., Civil No. 3:22-cv-131, 2023 WL 6130030 (W.D. Pa. Sept. 18, 2023)