The Second Circuit recently upheld a ruling that streaming giants Apple, Amazon, and Netflix engaged in fair use, in a case concerning the use of plaintiff musicians' song in a documentary film available for viewing on defendants' streaming platforms. In doing so, the Court found the eight-second snippet of the song was performed in a way that was transformative, and reasonably necessary to convey the film's message. Brown, et al. v.
Plaintiffs
In prior proceedings, the district court granted Netflix and Apple's motions to dismiss, and awarded judgment on the pleadings to Amazon. The district court determined that three of the four fair use factors (the purpose and character of the use, the amount and substantiality of the portion used, and the effect on the potential market) all weighed in favor of fair use, while the remaining factor (the nature of the copyrighted work) favored neither party.
On appeal, the Second Circuit agreed with the district court's conclusion. The Court's decision was guided largely by a finding that the performance of the song clip in the film was transformative. Specifically, the Court determined that the film combines burlesque performances with "cultural commentary on topics such as gender, sexuality, and the artistic process." The song clip accompanied a dancer's performance in which, according to the Court, the dancer was attempting to express her views on these topics. Finding the use of the song to be "consistent with the Film's nature as a documentary providing commentary and criticism," the Court determined it was transformative, and afforded defendants a presumption in favor of fair use as to the first factor (the "purpose and character" of the use).
The Court also determined that the "amount and substantiality" of the portion borrowed weighed in favor of fair use. Only eight seconds of the 190 second song are heard in the film. And even though the eight seconds used consisted of a recognizable portion of the chorus (arguably the "heart" of the song), the Court determined this was reasonable in relation to the transformative purpose of the use. Plaintiffs argued this purpose could have been just as effectively fulfilled with a shorter clip, because only the phrase "fish sticks" was relevant to the message conveyed (while the second half of the refrain was not). The Court was unmoved. It observed that fair use does not obligate a defendant to use the shortest possible snippet to convey its message.
Lastly,[1] the Court determined that the "effect on the potential market" factor likewise favored fair use. Noting that only an eight-second excerpt was performed in the background of an adult-oriented documentary, the Court found it unlikely that the intended audience for "Fish Sticks n' Tater Tots" would purchase "Burlesque" as a substitute for the original song. The Court also found it implausible that this song had a traditional or well-developed market for use in a documentary film.
The Court's expansive interpretation of the transformative use test in this decision seems to diverge from another recent Second Circuit opinion that we covered just last month. In
As we predicted in our prior coverage of Warhol v. Goldsmith, this redirection of the transformative use test may be a consequence of the
Footnote
Second Circuit Revisits Transformative Use Test in "Fish Sticks n' Tater Tots" Music Copyright Case
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