“The Girl with the Tiger King Tattoo Loses Copyright Infringement Lawsuit Against Netflix”
As the story goes … pandemic TV show gets super popular, people go crazy for it, tattoo parlor does contest and tattoos face of the Tiger King on her husband, Netflix shows it as part of fan art and popularity of show, tattoo artist sues Netflix for copyright infringement for $10,000,000 because some dumb lawyer probably told them to.
All the above said, this is a great case to look at how Fair Use works and how to test if Fair Use applies.
First off, what is “Fair Use”? Fair Use is when someone uses a copyrighted work but in a way that does not infringe on the right’s holder’s copyright. There are a number of tests to see if something is Fair Use. As this article does well, it outlines them:
Purpose and Character of the Use – How is the work being used and is it transformative in nature rather than just copying? In this case, Netflix isn’t selling the tattoo, instead they showed it in a collage of other fan art related to the show to exemplify how popular the show became during the pandemic and the things that fans created because of the show. It is sort of a historical look, not a “we’re copying your work” type of deal.
The Nature of Copyrighted Work – The tattoo is itself transformative and different, so it is copyrightable, but given it is based on the Netflix show and Netflix is not selling it as a tattoo, it does not play much of a factor in this case.
Amount and Substantiality of the Portion Used – This is a big one. If you use a 30 second clip of a film in a review it is Fair Use, while if you show the entire film on your review, you’re just streaming the film for others instead of them properly paying for it. In this case, the tattoo image was shown amongst many others and only for 3 seconds. Not a long time and not the center of the items being shown.
The Effect of the Use Upon the Potential Market for or Value of the Copyrighted Work – Did Netflix showing the tattoo affect the value of the tattoo itself? Is the tattoo as done on the tattoo artist’s husband’s leg (I think) less valuable because of Netflix’s showing it? No. It probably made it more popular and might have motivated others to go to the tattoo parlor and get something similar, actually benefiting the rights holder.
Put all these together and you get how to judge if something is Fair Use or Infringement of a work.