Brown v. Netflix, Inc. - 855 F. App'x 61 (2d Cir. 2021)

Rule:

The United States Court of Appeals for the Second Circuit considers four nonexclusive factors in determining whether the use made of copyrighted material is fair: (1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes; (2) the nature of the copyrighted work; (3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and (4) the effect of the use upon the potential market for or value of the copyrighted work.

Facts:

Plaintiffs-Appellants Tamita Brown, Glen S. Chapman, and Jason T. Chapman are musicians who created and own the copyright for the song "Fish Sticks n' Tater Tots" (the "Song"), which is at issue in this appeal. Plaintiffs sued Defendants-Appellees Netflix, Inc., Amazon.com, Inc., and Apple, Inc., for copyright infringement because the Song is played in a scene in the 2017 film entitled "Burlesque: Heart of the Glitter Tribe" (the "Film"), which is available for viewing on Defendants' respective video streaming platforms. Defendants had no license to perform or display a performance of the Song. In this suit, Plaintiffs did not name as defendants the producers of the Film, the relevant burlesque dancer, or any others involved in the making of the Film. Defendants jointly moved to dismiss and for judgment on the pleadings under Rules 12(b)(6)  and 12(c) of the Federal Rules of Civil Procedure, arguing that the fair use doctrine protected their display of the Film. The district court granted the motion to dismiss as to Netflix and Apple and awarded judgment on the pleadings to Amazon.

Issue:

Does the use of the snippet of the Song fall under the doctrine of fair use?

Answer:

Yes.

Conclusion:

Re: factor one — The documentary character of the Film fits within those uses identified by § 107: The Film provides a commentary on the burlesque art form and its resurgence in Portland, Oregon, as well as an exploration of the artistic process of the group of dancers on whom the Film centers. The Film does not merely re-broadcast the performances; rather, it combines those performances with cultural commentary on "topics such as gender, sexuality, and the artistic process." Indeed, it is only after interviewing one of the dancers about her views on such matters that the Film then shows a part of that dancer's performance wherein she attempts to express these views. It is while documenting this performance that the Film incidentally captures this dancer's use of the Song as brief background accompaniment to her burlesque act. In this context, Defendants' incidental use of the Song is consistent with the Film's nature as a documentary providing commentary and criticism.

Re: factor three — Only eight seconds of the Song (of 190 seconds total) are heard in the Film. And, although the refrain used may be the "heart" of the Song, a recognizable chorus can be used fairly when use of that segment of the song is "reasonable in relation to the purpose of the copying," here a documentary providing commentary on and criticism of aspects of burlesque as evident in certain dancers' performances. The dancer's use of the Song is relayed to the audience as captured by the Film, which sought to document the creative process behind developing the "reverse mermaid" routine and then its eventual performance as part of the Film's portrayal of burlesque dancers in Portland. Showing the performance as it happened, including the eight-second snippet of the Song, was reasonably necessary to convey the Film's message.

Re: factor four — As the Film contains only an eight-second excerpt of the Song's chorus—rather than the over three-minute complete track—embedded in a documentary film, the intended audience for the Song would be unlikely to purchase the Film "in preference to the original." Plaintiffs contend further that Defendants' infringement, if multiplied, "effectively destroys Plaintiffs' right to demand royalties for their work" as dance music or otherwise in films. Even crediting Plaintiffs' assertion that a licensing market exists for the Song as dance music or background music in films—an assertion not contained in the Complaint—the Film's brief use of a small portion of the Song as a component of an event recorded for documentary purposes does not plausibly fall within the traditional or well-developed market for the Song.