Tattoos again. (See here and here.)
In the early days of the pandemic, tattoo parlors across the country - including one owned by plaintiff
Around the time the promotion was hatched, Cramer, like so many (myself included), fell under the spell of Netflix's
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 2020." 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
In
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
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. SeeBill Graham Archives v.
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.
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