Tattoos again. (See here and here.)
In the early days of the pandemic, tattoo parlors across the country – including one owned by plaintiff Molly Cramer – were shuttered due to the threat of viral transmission between ink slinger and client. In an attempt to generate enough income to reopen her shop when lockdowns ended, Cramer ran a promotion: customers who purchased a gift certificate for future services could vote on their favorite tattoo design from among several she had created, and the winning design would be inked onto her husband’s thigh. (The court’s opinion doesn’t specify whether his left or right thigh would serve as the canvas.)
Around the time the promotion was hatched, Cramer, like so many (myself included), fell under the spell of Netflix's Tiger King. The docuseries focuses on the bitter rivalry between Joseph Allen Maldonado-Passage (aka "Joe Exotic"), a big cat breeder in Oklahoma, and his nemesis Carole Baskin, a self-styled animal rescuer who accused Joe of abusing and exploiting the animals under his care. According to Ad Week, 34.3 million Americans streamed Tiger King during the first ten days it was available on Netflix, making it COVID-19 lockdown's first smash hit. Resistance to its charms was futile.
Tattoo art often imitates life. One of the designs Cramer created for the promotion featured an image of Joe Exotic, encircled by floating corona viruses, a can of Lysol, and a toilet paper banner that read "Quarantine 2000." Cramer believed that Joe Exotic's "popularity, notoriety, and global recognition" would "receive a very large response by the public for the online sale of gift certificates." Turns out, she was right. Cramer sold nearly $4,000 worth of gift certificates, and, true to her word, her husband now sports the design that received the most votes: the Joe Exotic tattoo.
In November 2021, Netflix released a second season of Tiger King. The first episode of the new season began with a montage that stitched together clips from season 1 with footage documenting the global reaction to the show, including viral videos of fans dressed as Joe Exotic, a clip of then President Trump mentioning Joe Exotic at a press conference, and the following split screen which included a photo of the Cramer's Joe Exotic tattoo in the lower left hand corner:
This photo, originally published by Cramer on her Facebook page, was used by Netflix without permission and appeared on screen for less than three seconds. When Cramer's demand for $10 million (later reduced to $50,000) was rebuffed, she sued Netflix for copyright infringement. Netflix moved to dismiss under Rule 12(b)(6) on fair use grounds. District Judge Stephanie L. Haines (N.D. Pa) granted the motion, making quick work of it.
Purpose and Character of the Use
The first factor weighs "strongly" in favor of Netflix. Netflix's use of the tattoo "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" constitutes “criticism,” “comment,” or “reporting," all of which are among the uses called out in the preamble to § 107 that are commonly found to be fair. See Bill Graham Archives v. Dorling Kindersley Ltd., 448 F.3d 605 (2d Cir. 2006) (use of images of concert posters "as historical artifacts" in a book’s timeline about the history of the Grateful Dead was transformative). By including the tattoo image in a multimedia presentation alongside other examples of the public's reaction to Tiger King, Netflix had created “something new, with a further purpose or different character, altering the first with new expression, meaning or message" (quoting Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 578 (1994)). Moreover, Cramer and Netflix used the tattoo for "fundamentally different purposes": whereas Cramer "posted the image of the Tattoo on her husband’s thigh to promote her tattoo business and sell gift cards," Netflix used the image in a compilation to show "the magnitude of how the general public reacted to Joe Exotic after Season One of the Tiger King series." 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." Cf. Andy Warhol Foundation vs. Goldsmith, 143 S. Ct. 1258, 1274 (2023) (first factor did not favor fair use when the parties' use of the work shared "substantially the same purpose”).
The Nature of Copyrighted Work
Since the parties agreed that the tattoo design was a creative work, the second factor would tend to favor Cramer. "However, the Court gives this factor limited weight as Defendants’ use of the image of the Tattoo is transformative within the meaning of the first factor."
Amount and Substantiality of the Portion Used
The third factor also favors fair use. Although the tattoo image is shown in the episode in its entirety, "the image is less than life-size, depicted along with seven other images on screen, and shown for less than 3 seconds." Moreover, the use of the entire image was "appropriate to Defendants’ transformative purpose of showing the public’s reaction to Season One of the Tiger King series," specifically "to show the lengths viewers have gone to associate themselves with Joe Exotic, i.e., getting a tattoo of Joe Exotic’s face."
The Effect of the Use Upon the Potential Market for or Value of the Copyrighted Work
The fourth factor supports a finding of fair use because Netflix's "transformative use of the image of the Tattoo in no way usurps the market for the original." Cramer sells tattoos and gift cards for her tattoo business, and she does not allege that fewer people are in the market for her tattoos because of the image being shown in the episode.
Finally, the court concluded that it was appropriate to dispose of the case at the pleading stage. The plaintiff failed to identify how discovery would aid, inform or be relevant to a fair use analysis, and the record before the court – which included the tattoo image, the episode and the plaintiff's copyright registration – was sufficient to enable the court to conduct a full fair use analysis. "Even viewing the copyright infringement allegations in the light most favorable to Plaintiff, it is clear that the Court cannot grant relief under any set of facts that could be proven consistent with the record before the Court."
Cramer v. Netflix, Inc., Civil No. 3:22-cv-131, 2023 WL 6130030 (W.D. Pa. Sept. 18, 2023)
Brian G. Murphy is Partner at Frankfurt Kurnit Klein & Selz where he counsels advertising agencies, advertisers, and entertainment companies as they develop and produce advertising and entertainment properties across all media. Mr. Murphy was named 2018 Attorney of the year for Advertising and Entertainment Law by Best Lawyers.
This column presents a general discussion of legal issues, but is not legal advice and may not be applicable in all situations. Consult your attorney. To contact Brian G. Murphy ESQ click here.
