Brown v. Netflix, Inc.

Background

Tamita A. Brown, Glen S. Chapman, and Jason T. Chapman created the song “Fish Sticks n’ Tater Tots” in 2011 and received a copyright registration for it on May 1, 2012. The 2017 documentary film Burlesque: Heart of the Glitter Tribe follows burlesque dancers in Portland, Oregon. During one performance, a dancer used a food-themed routine involving a “reverse mermaid” and appeared to transform into fish sticks. Eight seconds of the song played during the performance, including the lyrics “fish sticks n’ tater tots,” sung five times.

The film was available for purchase, rental, or streaming on websites operated by Netflix, Amazon, and Apple. The plaintiffs alleged that the use was unauthorized and asserted claims for direct copyright infringement by public performance and reproduction, as well as inducement, contributory, and vicarious copyright infringement.

Motions and Standard

Netflix and Apple moved to dismiss under Federal Rule of Civil Procedure 12(b)(6), which tests whether a complaint states a legally sufficient claim. Amazon moved for judgment on the pleadings under Rule 12(c), which applies the same standard after the pleadings are closed. The court held that it could decide fair use at this stage because the facts needed for that defense appeared in the complaint and the materials incorporated into it.

The plaintiffs argued that the record was too incomplete for a fair-use decision and that the song’s unaltered use could not be transformative. The defendants argued that the use was fair because the film used the song for a different purpose and in a different setting.

Fair-Use Analysis

The court applied the four statutory fair-use factors under 17 U.S.C. § 107.

1. Purpose and character of the use. The court found that the use was transformative because the song was a lighthearted children’s story about a student going to lunch, while the film used the phrase in a mature burlesque performance about a “reverse mermaid.” The court concluded that the performance served a new and different function and created new meaning and aesthetics. Although the film was available through commercial streaming services, the court held that commercial purpose was not decisive because the use was transformative. This factor favored the defendants.

2. Nature of the copyrighted work. The court treated this factor as neutral. It said the song’s creative nature had limited importance because the film’s use was transformative.

3. Amount and substantiality of the portion used. The film used eight seconds of the song’s 190 seconds, or 4.21 percent. Although the plaintiffs argued that the excerpt was the song’s “heart” because it was a repeated chorus, the court concluded that the phrase was necessary to communicate the performance’s transformation into fish sticks. Both the quantitative and qualitative parts of this factor favored the defendants.

4. Effect on the potential market. This factor also favored the defendants. The court found that the film and the song targeted different audiences and that viewers were unlikely to acquire the film instead of the song. The court also rejected the plaintiffs’ argument that widespread unlicensed uses could harm possible licensing markets, finding those proposed uses unreasonable and unsupported by the complaint.

Ruling

The court concluded that the first, third, and fourth factors favored fair use and that the second factor was neutral. Because fair use defeated the direct infringement claims, the related inducement, contributory, and vicarious infringement claims also failed; those claims required an underlying direct infringement.

Judge Edgardo Ramos granted Netflix and Apple’s motion to dismiss under Rule 12(b)(6) and granted Amazon’s motion for judgment on the pleadings under Rule 12(c). The conclusion states that the defendants’ motion to dismiss and for judgment on the pleadings was granted with prejudice. The clerk was directed to terminate the motion and close the case.