Court Dismisses Netflix “Tiger King” Tattoo Copyright Case

tiger king

A US district court has granted Netflix’s motion to dismiss a claim for copyright infringement by a tattoo artist whose work was shown in the Tiger King series.

The case is Cramer v. Netflix, Inc.

In March 2020, early in the COVID-19 pandemic, Molly Cramer’s husband, Noah Cramer, created a contest to sell gift certificates online to support the couple’s tattoo business, which had closed due to the pandemic.

Buyers of the gift certificates could vote on one of several funny tattoo pictures created by Molly, and the winning picture would be tattooed onto her husband’s thigh.

One of the pictures was the face of "Joe Exotic," along with a Lysol brand aerosol can, an illustration of five COVID-19 viruses, and a toilet paper banner with the words "Quarantine 2020."

“Joe Exotic” is the nickname of a former zookeeper and convicted felon who was at the center of Netflix’s Tiger King reality-based series.

Molly said she created the tattoo because she

believed that because of Joe Exotic's popularity, notoriety, and global recognition, such a funny picture of Joe Exotic for tattooing on her husband would receive a very large response by the public for the online sale of ... gift certificates.

Sales of the gift certificates earned close to $4000, which allowed the couple to re-open their tattoo business. The Joe Exotic tattoo received the most votes, and Molly thus tattooed the image on her husband and posted a picture on Facebook.

An image of the tattoo appears in the first episode of season 2 of Tiger King as part of a montage, for about 2.2 seconds.

Soon after the episode aired, Molly started getting phone calls and texts from family and friends telling her that they’d seen her tattoo. After getting Joe Exotic’s permission to use his image, she filed a federal copyright registration for her work. Her attorney then sent a cease-and-desist letter to Netflix requesting that the image be removed from the episode and demanding $10 million for copyright infringement.

Netflix declined to pay and asserted that its use of the image was permitted under the copyright doctrine of “fair use.”

Several more letters followed, in one of which Molly lowered her demand to $50,000.

The court noted that

The Copyright Act confers a copyright owner with the exclusive right to reproduce a copyrighted work and to distribute copies of the work. See 17 U.S.C. § 106(1)-(3). "[T]o establish infringement, two elements must be proven: (1) ownership of a valid copyright, and (2) copying of constituent elements of the work that are original." Feist Publications, Inc. v. Rural Tel. Serv. Co., Inc., 499 U.S. 340, 361 (1991). A claim of copyright infringement is subject to certain statutory exceptions, including the "fair use" exception, which provides that "the fair use of a copyrighted work ... for purposes such as criticism, comment, news reporting, teaching scholarship, or research, is not an infringement of copyright." 17 U.S.C. § 107.

Fair use is an affirmative defense to a claim of infringement. The following factors are considered:

  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.

17 U.S.C. § 107.

With regard to the first factor, the court noted that

Defendants' stated purpose for using the image of the Tattoo was to "include images and footage from some of the more strange online postings relating to the [Tiger King] Series and to Joe Exotic, as a means to give the audience a sense of the nature and scale of the public's bizarre reaction to the Joe Exotic phenomenon"…

The first factor requires courts to consider the extent to which the secondary work is "transformative," as well as whether it is commercial.

Netflix alleged that its use of the tattoo image "has an entirely new and different, biographical purpose, as well as a different meaning and message, namely, helping to show that Joe Exotic accumulated a mass following of fanatical viewers" and further, that the use of the image in the context of the 8-way split-screen montage and with voice over and visual effects has "integrated a multitude of different images and clips of footage, while adding audio and visual effects to create an entirely new work."

The Cramers asserted that this was not a “new” purpose since Molly also created the artwork because of Joe Exotic’s notoriety, global recognition, fame, and number of fanatical viewers.

Fair use purposes include "criticism, comment, news reporting, teaching ..., scholarship, or research."

The court agreed with Netflix that its multi-media use of the image of the tattoo was a "criticism," "comment," or "reporting," and therefore "not an infringement of copyright."

Said the court,

The purpose and character of the Defendants' use of the Tattoo is 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, and thus falls into the "criticism," "comment," or "reporting" that is expressly defined as "fair use" under the Copyright Act, 17 U.S.C. § 107.

The court noted that Netflix wasn’t in the tattoo business and thus that its use didn’t supersede the object of the tattoo nor serve as a substitute for it.

The court found that the second fair use factor weighed in favor of Molly, since the tattoo was creative.

“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.”

As for the third factor, the court recognized that the entirety of the tattoo was shown.


Defendants' use of the Tattoo in the Episode does not create a likelihood of market harm for the Tattoo or Plaintiff's ability to sell gift cards or drive income to her business. Accordingly, the Court finds the third factor favors fair use.

Finally, the court found that

the fourth factor also favors fair use because the 3-second montage of images, showing the image of the Tattoo in reduced size in a corner of the screen, is plainly no substitute for the original Tattoo.

Categories: Copyright