Analyzing the First Fair Use Factor: Purpose and Character of Use

A tattoo artist is suing Netflix for showing one of her tattoos in the series “Tiger King” without her permission. Scott Hervey and Tara Sattler discuss this case on this episode of The Briefing.

Watch this episode on the Weintraub YouTube channel here.

Show Notes:

Scott:
On this installment of The Briefing, we’re going to talk about yet another post-Warhol fair use case. However, in this case, the Court finds the secondary use to be transformative. This case also makes me think that fair use, grounded in use as a biographical anchor, isn’t quite as dead as I may have thought it is. We’re going to talk about Molly Cramer vs. Netflix on this installment of the Briefing.

The case is Molly Kramer vs. Netflix. It arises from a tattoo artist’s lawsuit against Netflix due to the portrayal of her Joe Exotica tattoo, actually, a picture of her Joe Exotica tattoo as tattooed on her husband’s arm that she posted on Facebook, and the use of this image in the first episode of the second season of Tiger King. The context of the display of this photo and the tattoo is relevant to the Court’s analysis. So the opening of the episode, this is the first episode of the second season, is meant to be reflective of the popularity of Tiger King and Joe Exotica and how it spread like literal wildfire during the first half of COVID The montage shows approximately 27 TikTok videos depicting dancers dressed as Joe Exotica are wearing animal print clothing and a clip from a Trump press conference where he asks, is that Joe Exotica?

Then there are about 58 seconds into the episode, an eight-way split-screen montage appears with all types of images of or relating to Joe Exotica, and this includes the photo of the tattoo in the lower left-hand corner. And this appears on screen for about 2.2 seconds. The barrage of images and videos continue on for about three minutes in total, all of which is to show how Joe Exotica, Carol Baskin, and the other cast of characters from Tiger King became a huge part of the cultural zeitgeist for that specific moment in time.

Tara:
So the tattoo artist here, Molly Kramer, obtained a copyright registration covering the tattoo and then sent Netflix a demand letter. The court opinion says that she demanded $10 million to settle the infringement claim.

Scott:
So, let’s talk about that demand for a second. If, as a plaintiff in a case like this, you come out with such a huge demand number, a number that, at least as far as I’m concerned, has no relation to the amount of damages that you would likely be awarded. I think it only pushes the defendant to defend the case because it says that you either aren’t reasonable or that you don’t understand how damages in a copyright case are to be assessed. So, yes, I mean, Netflix has a lot of money, but it isn’t handing out bags of money to plaintiffs who have a potentially defensible claim.

Tara:
And it seems like that’s probably what happened here, because it seems that Netflix and Kramer’s attorney did exchange further letters, and Kramer eventually offered to settle for $50,000 instead of 10 million. But Netflix continued to insist that their use was fair use. Kramer eventually filed a copyright infringement lawsuit, and Netflix filed a twelve B six motion to dismiss the case on the grounds that Netflix’s use of the tattoo image was fair use.

Scott:
So, to determine whether a work constitutes fair use, courts engage in a case-by-case analysis and a flexible balancing of relevant factors. Those factors are the purpose and character of the use, including whether the use is of commercial nature or is for a nonprofit educational purpose. The second factor being the nature of the copyrighted work that’s copied, the third factor being the amount and substantiality of the portion of the work that’s used in relation to the copyrighted work as a whole. And the fourth factor is the effect of the use upon the potential market for or value of the copyrighted work.

Tara:
So, the first factor assesses whether the use is transformative, as established in the Supreme Court case of Campbell versus Cuff Rose Music. Transformativeness occurs where the new work adds something new with a further purpose or different character, altering the first with new expression, meaning, or message.

Scott:
Right. And the recent Warhol decision now requires courts to ask, as part of the first factor, whether and to what extent the use at issue has a purpose or character different from the original and whether that supports a justification for copying. So now, the first fair use factor will analyze whether the purpose of the use of the second work is different enough from the first to reasonably justify a copying. Under the Warhol decision, a transformative use cannot be found for any use that just adds some new expression, meaning, or message. Now, the purpose of the use must be distinct enough from the purpose of the original use in order to justify copying.

Tara:
Yeah. So, the first fair use factor here, the Court looked at the purpose and character of Kramer’s use. According to Kramer’s own allegations, this was to capitalize on Joe Exotic’s popularity in order to sell her tattooing services. Netflix’s purpose of including the image was, according to Netflix, to showcase some of the stranger online images related to Joe Exotica in order to give scale to the large and bizarre reaction to Tiger King and its characters.

Scott:
Right. Netflix states that their use of the image of the tattoo has an entirely new and different biographical purpose, as well as a different meaning and message, namely, helping to show that Joe Exotica or Joe Exotic is it exotica or exotic?

Tara:
It’s exotic.

Scott:
Exotic. Joe Exotic accumulated a mass I like exotica better.

Tara:
I think it should.

Scott:
Anyways, helping the show that Joe Exotic accumulated a mass following of fanatical viewers, the plaintiff argued that this really is not a new purpose that justifies copying, as her purpose for choosing Joe Exotic was because of Joe Exotic’s notoriety, global recognition, fame, and a number of fanatical viewers. She basically says that the reason why she chose Joe Exotic for the tattoo is the same reason and purpose that Netflix chose the photograph of her tattoo.

Tara:
So, on this, the Court noted that the plaintiff’s tattoo design is indisputably a byproduct of the cultural phenomenon created by the first season of the Tiger King series. And the tattoo was created to capitalize on the portrayal of Joe Exotic created by the series. And that is why there is a seemingly similarity in purpose, but not vice versa.

Scott:
Addressing Kramer and Netflix’s purpose, with Kramer’s purpose being to sell tattoos and Netflix’s purpose being to show the magnitude of the global popularity of Tiger King and its characters, the Court found these purposes to be fundamentally different. Further, the Court stated that the different in purposes is made further apparent by the inability of the episode to supersede the tattoo. The Court points to the Supreme Court’s discussion in Warhol of the Warhol soup can series. The Court says that in Warhol, the Supreme Court stated that it did not mean that all derivative works borrowing heavily from an original cannot be fair use. And the Supreme Court specifically noted that the Warhol Soup cans is illustrative of that distinction. The Supreme Court stated that the purpose of Campbell’s Soup logo is to advertise its soup, and Warhol’s Soup Can canvases do not share that purpose. Instead, they’re used for artistic commentary on consumerism, which is independent from the purpose of advertising Soup.

Tara:
So, how can we extrapolate from this case? Brandon Boots versus Penske Media Corporation, the Dirt case you previously reported on, and obviously Warhol to come up with some cohesive application of the purpose-based analysis in fair use, right?

Scott:
It’s kind of challenging to find the through line in all of these cases, but we’ll try. So both Vootz and Kramer’s use was to encourage a sale, right? Vootz being encouraging a sale of real estate, Kramer’s being to encourage a sale of tattoo services. So there is that similarity there. Netflix’s use wasn’t to comment on Joe Exotic’s lifestyle but rather used as just one small part of a larger combination of various photos and videos to exemplify the general public’s unexplainable and seemingly insatiable interest in the Tiger King series and its characters.

Tara:
And in Warhol. The Court discussed Warhol’s. Campbell Soup Can series. There, the Court said that the purpose of the Campbell Soup logo is to advertise Soup, while Warhol’s Canvas series uses the Soup company’s copyrighted logo for an artistic commentary on consumerism, which is a purpose independent from advertising Soup.

Scott:
So, this all ties into the fourth fair use factor. And maybe that’s the through line. Maybe really, that’s what we should be looking at is: the fourth fair use factor and this purpose-based analysis together. So the fourth fair use factor, the effect of the use upon the potential market for or value of the copyrighted work, because this seems to have relevance to the purpose based analysis where the secondary work could usurp the market for the first work. Obviously, this lends against the finding of fair use. So, where there is a meaningful or a significant effect upon the potential market for or value of the copyrighted work, this would weigh against the finding of fair use. And seemingly, the purpose underlying the use of the second work wouldn’t justify the copying.

Tara:
We can see this in Warhol. The purpose of the use of the Warhol image was the use of a licensed image of Prince in an article about Prince. Clearly, this would have a significant effect on the market for Goldsmith’s image. And I can also see this in Voots versus Penske media. While Voots hadn’t historically licensed his photos to parties other than real estate agents, if the plaintiff can show that the challenge use becomes widespread, it would adversely affect the potential market for the copyrighted work, which weighs against fair use. Here in Kramer, the Court found that Netflix’s use of the image in the series would not have a significant effect on the market for Kramer’s tattoo. But what if Kramer was also in the business of licensing photos of her tattoos? Would that create a different result?

Scott:
That’s an interesting question. Initially, I’m inclined to say no because.

Tara:
The core purpose of Kramer’s use was to sell tattoos, and Netflix’s use of the image in the series would not have a significant effect on the market for Kramer’s tattoos. However, if Kramer was in the business of licensing photos of her tattoos to third parties, I think that could trigger a different result.

Scott:
So, one interesting note in the Vootz case is the Court’s statement that 9th Circuit precedent instructs the widespread reproduction of copyrighted photographs in news articles, even if that reproduction is unrelated and subject matter to what the plaintiff normally licenses its photographs for. That would damage the plaintiff’s market to license those photographs and thus weigh against a finding of fair use. The way I interpret that language is if a plaintiff is in the business of licensing photographs, even if the purpose of the use may be well, let me say it’s a different way.

If the plaintiff is in the business of licensing photographs, then the purpose of the use it’s going to have to be related because the purpose of the use will be the use of that particular photograph in whatever context the defendant is using it in. So I kind of read this as this biographical use that Netflix uses Kramer’s image for is not necessarily available in the circumstances where the plaintiff has an active licensing business.

Tara:
I agree with you, Scott. I think I read it the same way, and I think this is also getting really complicated. So I think we’re going to have to watch and see the future cases that are coming down here continuing to try to interpret Warhol and put some more practical examples out there for everybody to interpret and try to yeah, I agree.

Scott:
We’ll be watching this closely. Well, thanks for taking the time to talk with me today about yet another post-Warhol fair use case.

Tara:
Thanks, Scott. And I’m sure there will be more soon, so I’m looking forward to it.

Scott:
Tara, thank you for listening to today’s installment of the briefing and for joining us here. You can find us anywhere that you find your podcast and also on YouTube. Please also don’t forget to rate us or leave us a review if you’d like. Sam.