2nd Circuit Copyright Opinion Hands Victory to Amazon, Apple, and Netflix

Three musicians who created and own the copyright for the song “ Fish Sticks n’ Tater Tots” sued Netflix Inc., Amazon.com Inc., and Apple Inc. for copyright infringement after the song featured in a 2017 documentary film about the burlesque art form that was viewable on the defendants’ respective video streaming platforms. On Tuesday, the appellate panel affirmed the lower court’s grant of dismissal after similarly concluding that the Copyright Act’s fair use doctrine protected the film’s display.

The summary opinion, a non-precedential ruling, explained that the defendants had no license to perform or display a performance of the song. It also noted that the plaintiffs neither named the producers as defendants nor the dancer who performed the song in the burlesque documentary.

The court focused its analysis on the defendants’ affirmative defense, that Section 107 of the Copyright Act excepted them from copyright infringement. The so-called fair use provision allows use of protected content for purposes of comment, teaching, and research, among other exceptions.

In weighing whether the use of the song was “fair” within the meaning of the statute, the court considered four factors. Those variables contemplate the purpose of the use of the copyrighted material, the nature of the work itself, the proportion of the work used, and the effect of the use on the market for or value of the copyrighted work, the panel explained.

The court reasoned that 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.” Additionally, the opinion underscored the film’s cultural commentary and interview-driven narrative.

The court shot down the plaintiff’s suggestion that the film is not a documentary but in fact a “scripted creative work” that does not portray real events. The opinion stated that this notion “is pure conjecture, which we have ‘no obligation to entertain.’”

The panel also noted the film contains only an eight-second excerpt of the song’s chorus. As such, the court opined, the song’s intended audience would be unlikely to purchase the film instead of the musicians’ original recording.

The musicians are represented by Knox Law Group P.C., and the streaming platforms by Ballard Spahr LLP.