20-2007
`Brown, et al. v. Netflix, Inc., et al.
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`UNITED STATES COURT OF APPEALS
`FOR THE SECOND CIRCUIT
`SUMMARY ORDER
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`RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A
`SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007 IS PERMITTED AND IS GOVERNED BY
`FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN
`CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE
`EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION
`“SUMMARY ORDER”). A PARTY CITING TO A SUMMARY ORDER MUST SERVE A COPY OF IT ON
`ANY PARTY NOT REPRESENTED BY COUNSEL.
`
`At a stated term of the United States Court of Appeals for the Second Circuit, held at
`the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York,
`on the 18th day of May, two thousand twenty-one.
`
`PRESENT:
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`
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`DENNIS JACOBS,
`REENA RAGGI,
`SUSAN L. CARNEY,
`Circuit Judges.
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`_________________________________________
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`TAMITA BROWN, GLEN S. CHAPMAN, JASON T. CHAPMAN,
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`NETFLIX, INC., AMAZON.COM, INC., APPLE, INC.,
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`Defendants-Appellees.
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`_________________________________________
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`FOR APPELLANT:
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`Plaintiffs-Appellants,
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`v.
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`No. 20-2007
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`FOR APPELLEE:
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`DANIEL KNOX, Knox Law Group, P.C.,
`New York, NY.
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`JAY WARD BROWN, (Joseph Slaughter, on
`the brief), Ballard Spahr, LLP, New York,
`NY.
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`

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`Appeal from a judgment of the United States District Court for the Southern District
`of New York (Edgardo Ramos, J.).
`
`UPON DUE CONSIDERATION WHEREOF, IT IS HEREBY ORDERED,
`ADJUDGED, AND DECREED that the judgment entered on May 28, 2020, is
`AFFIRMED.
`
`Plaintiffs-Appellants Tamita Brown, Glen S. Chapman, and Jason T. Chapman are
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`musicians who created and own the copyright for the song “Fish Sticks n’ Tater Tots” (the
`“Song”), which is at issue in this appeal. Plaintiffs sued Defendants-Appellees Netflix, Inc.,
`Amazon.com, Inc., and Apple, Inc., for copyright infringement because the Song is played in
`a scene in the 2017 film entitled “Burlesque: Heart of the Glitter Tribe” (the “Film”), which
`is available for viewing on Defendants’ respective video streaming platforms.1 Defendants
`had no license to perform or display a performance of the Song. In this suit, Plaintiffs did
`not name as defendants the producers of the Film, the relevant burlesque dancer, or any
`others involved in the making of the Film.
`
`Defendants jointly moved to dismiss and for judgment on the pleadings under Rules
`12(b)(6) and 12(c) of the Federal Rules of Civil Procedure, arguing that the fair use doctrine
`protected their display of the Film. The district court granted the motion to dismiss as to
`Netflix and Apple and awarded judgment on the pleadings to Amazon.2 Plaintiffs now
`appeal. We assume the parties’ familiarity with the underlying facts, procedural history, and
`arguments on appeal, to which we refer only as necessary to explain our decision to affirm.
`
`Section 107 of the Copyright Act provides that “the fair use of a copyrighted
`work . . . for purposes such as criticism, comment, news reporting, teaching (including
`
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`1 Plaintiffs sued Defendants for directly infringing their right publicly to perform their work under 17 U.S.C.
`§ 106(4), directly infringing their right to reproduce their work under id. § 106(1), and contributory and
`vicarious copyright infringement, and inducement of copyright infringement of those same rights under id. §§
`106(1), (4). App’x 27–33 (Compl. ¶¶ 37–79). Although these theories of liability differ slightly, the parties do
`not dispute that a finding of fair use would be a complete defense to all of Plaintiffs’ claims, and for that
`reason we need not address each theory separately. See 17 U.S.C. § 107 (fair use is not infringement of
`copyright, “[n]otwithstanding the provisions of sections 106 and 106A”).
`2 Amazon answered the Complaint on June 22, 2019. Netflix and Apple did not file an answer.
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`2
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`multiple copies for classroom use), scholarship, or research, is not an infringement of
`copyright.” 17 U.S.C. § 107. Although the issue is often not resolved until the summary
`judgment stage, a fair use defense may be “so clearly established by a complaint as to
`support dismissal.” TCA Television Corp. v. McCollum, 839 F.3d 168, 178 (2d Cir. 2016).3 The
`standard for granting a Rule 12(c) motion for judgment on the pleadings “is identical to that
`[of] a Rule 12(b)(6) motion for failure to state a claim.” Lynch v. City of New York, 952 F.3d
`67, 75 (2d Cir. 2020). Accordingly, we accept the pleadings’ factual allegations as true and
`draw all reasonable inferences in Plaintiffs’ favor. Nielsen v. Rabin, 746 F.3d 58, 62 (2d Cir.
`2014).
`
`We consider four “nonexclusive factors” in determining whether the use made of
`copyrighted material is “fair”:
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`(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.
`TCA Television Corp., 839 F.3d at 178 (quoting 17 U.S.C. § 107). The district court concluded
`that, while the second factor favored neither party, the first, third, and fourth factors
`weighed in favor of determining that the Defendants made fair use of the Song. It therefore
`determined that Defendants’ use of the Song was fair within the meaning of § 107 and did
`not infringe Plaintiffs’ copyright.
`
`On de novo review, we agree with the district court’s conclusion of fair use. Our
`evaluation of the first factor “may be guided by the examples given in the preamble to § 107,
`looking to whether the use is for criticism, or comment, or news reporting, and the like.”
`Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 578–79 (1994). The “central purpose” of this
`task is to determine “whether the new work merely supersedes the objects of the original
`creation, or instead adds something new, with a further purpose or different character,
`altering the first with new expression, meaning, or message; it asks, in other words, whether
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`3 Unless otherwise noted, in quoting caselaw this Order omits all alterations, citations, footnotes, and internal
`quotation marks.
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`3
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`and to what extent the new work is ‘transformative.’” Id. at 579. When the allegedly
`infringing work “fits the description of uses described in § 107,” such as criticism, comment,
`or scholarship, “there is a strong presumption that factor one favors the defendant.”
`NXIVM Corp. v. Ross Inst., 364 F.3d 471, 477 (2d Cir. 2004).
`
`Here, 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. The Film does not merely re-broadcast the performances; rather, it
`combines those performances with cultural commentary on “topics such as gender,
`sexuality, and the artistic process.” Appellees’ Br. at 25. Indeed, it is only after interviewing
`one of the dancers about her views on such matters that the Film then shows a part of that
`dancer’s performance wherein she attempts to express these views. It is while documenting
`this performance that the Film incidentally captures this dancer’s use of the Song as brief
`background accompaniment to her burlesque act. In this context, Defendants’ incidental use
`of the Song is consistent with the Film’s nature as a documentary providing commentary and
`criticism. Accordingly, the Film is entitled to a presumption in favor of fair use with regard
`to factor one. See, e.g., Bill Graham Archives v. Dorling Kindersley Ltd., 448 F.3d 605, 608–12 (2d
`Cir. 2006) (comparing use of copyrighted images in timeline akin to use of quotations in
`biography and finding first factor weighed toward finding of fair use); Ringgold v. Black Ent.
`Television, Inc., 126 F.3d 70, 79 (2d Cir. 1997) (endorsing continued validity of Italian Book
`Corp. v. Am. Broad. Cos., 458 F. Supp. 65, 71 (S.D.N.Y. 1978), which found fair use by news
`broadcast of song captured during report on street parade); Video-Cinema Films, Inc. v. Lloyd
`E. Rigler-Lawrence E. Deutsch Found., No. 04-cv-5332 (NRB), 2005 WL 2875327, at *7
`(S.D.N.Y. Nov. 2, 2005) (holding that, although contested secondary use was not
`transformative, it properly fell within § 107’s preamble categories and therefore first factor
`weighed towards fair use); Threshold Media Corp. v. Relativity Media, LLC, No. 10-cv-9318,
`2013 WL 12331550, at *7–10 (C.D. Cal. Mar. 19, 2013) (holding documentary’s inclusion of
`copyrighted song, which was played and discussed by documentary subjects, weighed
`towards fair use under first factor).
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`4
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`Plaintiffs assert that it is premature at this stage of the litigation, during which all
`inferences are to be drawn in their favor, to conclude that the Film is a documentary
`depicting real events. Not so. When, as here, the copyrighted and secondary works are
`incorporated by reference into the pleadings, “the works themselves supersede and control
`contrary descriptions of them, including any contrary allegations, conclusions or descriptions
`of the works contained in the pleadings.” Peter F. Gaito Architecture, LLC v. Simone Dev. Corp.,
`602 F.3d 57, 64 (2d Cir. 2010). The Film has all the hallmarks of a documentary film,
`including interviews, commentary interspersed with footage of events, and a narrative voice-
`over. Further, Plaintiffs did not allege in their Complaint that the Film is anything but a
`documentary. Their suggestion on appeal that the Film is not a documentary but in fact a
`scripted creative work that “take[s] the form or style of a documentary, but do[es] not
`portray real events,” Appellants’ Br. at 13, is pure conjecture, which we have “no obligation
`to entertain.” Gallop v. Cheney, 642 F.3d 364, 368 (2d Cir. 2011).4
`
`The third factor, the amount of borrowing, also favors a fair use finding. Only eight
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`seconds of the Song (of 190 seconds total) are heard in the Film. And, although the refrain
`used may be the “heart” of the Song, a recognizable chorus can be used fairly when use of
`that segment of the song is “reasonable in relation to the purpose of the copying,” here a
`documentary providing commentary on and criticism of aspects of burlesque as evident in
`certain dancers’ performances. Campbell, 510 U.S. at 586–88 (in the context of a parody of a
`song, “[c]opying does not become excessive in relation to parodic purpose merely because
`the portion taken was the original’s heart”). Plaintiffs insist that the use is not fair because
`the Film uses more of the Song than necessary, urging that only the phrase “fish sticks” is
`required to communicate the “‘reverse mermaid’ transformation” attempted by the dancer,
`and therefore the second half of the refrain, “tater tots,” is excessive. Appellants’ Br. at 23.
`The argument is unpersuasive. The fair use doctrine does not obligate the Film to use the
`shortest possible snippet to convey its message of commentary and criticism. See Campbell,
`
`4 Because Plaintiffs do not here sue the dancer who used the Song in her act or the proprietors of the venue
`in which she performed, we do not consider whether the dancer’s use of the Song was sufficiently
`transformative as to avoid copyright infringement. Compare Cariou v. Prince, 714 F.3d 694, 707–08 (2d Cir.
`2013), with TCA Television Corp., 839 F.3d at 179–83.
`
`5
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`510 U.S. at 586–88; cf. Cariou v. Prince, 714 F.3d 694, 710 (2d Cir. 2013) (making point in
`context of use that is artistically transformative). The dancer’s use of the Song is relayed to
`the audience as captured by the Film, which sought to document the creative process behind
`developing the “reverse mermaid” routine and then its eventual performance as part of the
`Film’s portrayal of burlesque dancers in Portland. Showing the performance as it happened,
`including the eight-second snippet of the Song, was reasonably necessary to convey the
`Film’s message.
`
`Finally, the fourth factor—the effect the infringing use has on the potential market
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`for the Song—also weighs in favor of fair use. This inquiry focuses on whether the
`infringing use “usurps” the market for the original. Id. at 708. As the Film contains only an
`eight-second excerpt of the Song’s chorus—rather than the over three-minute complete
`track—embedded in a documentary film, the intended audience for the Song would be
`unlikely to purchase the Film “in preference to the original.” Authors Guild v. Google, Inc., 804
`F.3d 202, 223 (2d Cir. 2015); see also Lombardo v. Dr. Seuss Enters., L.P., 279 F. Supp. 3d 497,
`512 (S.D.N.Y. 2017) (stating that there was “virtually no possibility” of usurpation where
`original work was “a children’s book intended for an all-ages audience” and infringing work
`was “clearly intended for adult audiences”). Plaintiffs contend further that Defendants’
`infringement, if multiplied, “effectively destroys Plaintiffs’ right to demand royalties for their
`work” as dance music or otherwise in films. Appellants’ Br. at 25. Because fair use always
`results in some loss of royalty revenue, however, we consider only the “challenged use’s
`impact on potential licensing revenues for traditional, reasonable, or likely to be developed
`markets.” TCA Television Corp., 839 F.3d at 186. Even crediting Plaintiffs’ assertion that a
`licensing market exists for the Song as dance music or background music in films—an
`assertion not contained in the Complaint—the Film’s brief use of a small portion of the
`Song as a component of an event recorded for documentary purposes does not plausibly fall
`within the traditional or well-developed market for the Song. Accordingly, the fourth factor
`also weighs in favor of fair use.
`
`* * *
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`6
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`We have considered Plaintiffs’ remaining arguments and find in them no basis for
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`reversal. For the reasons stated above, the district court’s judgment is AFFIRMED.
`Further, Appellants’ pending motion to correct the record on appeal is DENIED.
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`FOR THE COURT:
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`Catherine O’Hagan Wolfe, Clerk of Court
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`7
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