Kat Von D Meets Tiger King: Has Warhol Destroyed Transformative Fair Use?

“As shown by the divergent Kat Von D and ‘Tiger King’ outcomes, the jurisprudence is still trying to sort out whether direct targeting is in fact a per se requirement to satisfy the first fair-use factor post-Warhol.”

Warhol

Source: Court documents in Sedlik v. von Drachenberg.

Celebrity tattoo artist Kat Von D recreated a photograph of a famous musician in ink on her client’s arm and posted photos of the process online. Netflix docuseries “Tiger King” incorporated video footage of a real-life funeral as part of its documentary coverage of the deceased’s husband. The two parties were sued separately for copyright infringement—of the photograph, in Kat Von D’s case, and the video, in Netflix’s case.

Both defendants argued that their uses were fair use. Both plaintiffs argued that there could be no transformative use under the first fair-use factor because the accused use did not specifically criticize or comment on the original work. Kat Von D won; Netflix lost.

These opposite outcomes from the Ninth and Tenth circuits highlight the difficulty of delimiting transformative fair use in view of last year’s Andy Warhol Foundation v. Goldsmith decision. Here, the Supreme Court interpreted the first fair-use factor, also known as the transformative use factor. This factor assesses the “purpose and character” of the accused work.

To prevail on this factor, the Court said, the accused work must have an overarching purpose truly distinct from that of the original work. It is not sufficient to simply ask whether there is a different meaning or message, for a second work can have a new meaning or message while retaining the same overarching artistic purpose as the original—as in the case of derivative works, for example.

The Copyright Act identifies a few classic fair-use types in which the original work clearly is utilized as the subject or target of the accused work, thus embodying a new purpose under the first factor. As provided in section 107, these purposes include criticism, commentary, news reporting, teaching, and scholarship. With these examples in mind, the Court held that Warhol’s use of a photograph did not satisfy the first factor because the use did not target the original photograph and the Foundation failed to offer another compelling justification for the use.

The Warhol decision seems to indicate that direct targeting (i.e., criticism, commentary, etc.) of the original work may not be required to constitute transformative use if another “compelling justification” is present. However, most of the Court’s discussion revolved around the lack of criticism or commentary of the original work in Warhol’s derivative; the Court did not expound on what other types of justifications could, at least hypothetically, suffice. As shown by the divergent Kat Von D and “Tiger King” outcomes, the jurisprudence is still trying to sort out whether direct targeting is in fact a per se requirement to satisfy the first fair-use factor post-Warhol.

Sedlik v. von Drachenberg (Ninth Circuit)

In this tattoo-related dispute, the U.S. District Court for the Central District of California recently upheld the January 2024 jury verdict for Kat Von D. In a post-verdict motion for judgment as a matter of law, photographer Jeffrey Sedlik challenged the jury’s finding that fair use protected social media posts capturing Kat Von D’s tattoo process, with his photograph in the background. He argued that these posts failed the first factor as a matter of law because they had no critical bearing on the photograph itself.

The court sided with Kat Von D and, in May 2024, denied Sedlik’s motion. Citing Warhol, the court said that criticism or commentary of the original work is not absolutely required. The court believed that the jury, balancing all four fair-use factors, reasonably concluded that fair use protected the appearance of the photograph in the background of the social media posts.

The jury also decided that fair use protected Kat Von D’s choice to replicate the photograph in making her tattoo. However, the court did not evaluate that fair-use finding, choosing instead to uphold the verdict on the basis that the tattoo did not copy protectable elements of the photograph. Sedlik has already filed an appeal, so the U.S. Court of Appeals for the Ninth Circuit may have occasion to rule on fair use, protectability, and other matters relevant to copyright law.

Whyte Monkee Productions v. Netflix (Tenth Circuit)

In this “Tiger King” dispute, the U.S. Court of Appeals for the Tenth Circuit sided with a copyright plaintiff in a controversial decision that the court ultimately vacated due to industry backlash. “Tiger King” is a true crime docuseries about Joe Maldonado (“Joe Exotic”), a former zookeeper convicted of murdering tigers in a murder-for-hire scheme. The series included a short clip from video footage of the funeral of Maldonado’s husband. The video was filmed by a man named Joseph Sepi, who sued Netflix for copyright infringement in the U.S. District Court of Western District of Oklahoma.

The district court granted summary judgment for Netflix based on fair use, holding that Netflix used one minute out of a 24-minute-long video as “raw material to create new information, new aesthetics, new insights and understandings.” Sepi appealed, and the Tenth Circuit in March 2024 reversed the lower court’s ruling. According to the court, Netflix could not claim fair use as a matter of law, in part because the borrowed video was not the subject of any criticism or commentary; the video was used purely as a vehicle to discuss Maldonado.

The court did not expressly state a per se requirement that criticism or commentary on the original work is always required to satisfy the first fair-use factor. However, lawyers and industry advocates have seemingly inferred one from the court’s failure to acknowledge any other possible justification for the unauthorized use of Sepi’s video. As a result, the decision has provoked heated industry and scholarly backlash, including amicus briefs filed by a collection of law professors, the Motion Picture Association, the International Documentary Association, and the American Library Association.

Critics of the ruling cite pre-Warhol caselaw holding that fair use protects the reuse of copyrighted works for their historical or biographical significance. Applying this principle, these cases have permitted use of photographs, artwork, film clips, and other types of copyrighted material in diverse media such as books, film, documentaries, and theater productions.

Of note, at least one decision post-Warhol has condoned a documentary’s use of copyrighted material as fair use. In September 2023 in Kelley v. Morning Bee, Inc., the U.S. District Court for the Southern District of New York upheld as fair use the inclusion of airport photographs in a Billie Eilish documentary to illustrate her worldwide travels. Regarding the first fair-use factor, the court held that in the documentary context, “[the] transformative purpose of enhancing the biographical [story is] a purpose separate and distinct from the original artistic and promotional purpose for which the images were created.”

Ultimately, critics of the Tenth Circuit’s “Tiger King” ruling are concerned that a per se targeting requirement would chill nonfiction storytelling.

“I don’t think that this ruling encourages the evolution of creative arts or encourages the reuse of works in a different, compelling, and entertaining manner,” attorney Scott Hervey said in a May 2024 podcast produced by law firm Weintraub Tobin. “It stymies creativity and puts unnecessary roadblocks in front of storytellers who sometimes need to be able to use existing material in a different way to tell their stories.”

In response to the criticism, the court in May 2024 vacated its decision and granted panel rehearing. As of this writing, the rehearing is set to occur in July 2024, after which the court will likely issue a new ruling.

An Open Question Soon to Be Answered

As the Kat Von D case makes its way through a Ninth Circuit appeal and the “Tiger King” parties await rehearing by the Tenth Circuit, we may soon gain insight on the contours of transformative fair use post-Warhol.

This should not be construed as a one-sided issue, particularly in the context of historical artifacts like Sepi’s funeral video. Although a chilling effect on nonfiction storytelling should be considered, so too should the value that copyright owners may provide to these works. Sepi validly argues that transformative fair use should not be limitless and that overextending fair use to protect anything with a historical anchor could enable large companies to exploit the less powerful.

In light of an Eighth Circuit ruling on June 7, 2024, the Tenth Circuit’s (now vacated) per se requirement may be seen as an outlier. In Griner v. King, the U.S. Court of Appeals for the Eighth Circuit upheld the jury’s verdict that then-congressman Steven King and his campaign committee had infringed the plaintiff’s copyright by publishing a meme on social media in furtherance of fundraising efforts. Although the judgment was only $750, King appealed. In rejecting his fair use defense, the Eighth Circuit cited Warhol’s requirement for a “compelling justification” rather than stating a rule requiring criticism or commentary on the original work.

Perhaps the Tenth Circuit did not intend to articulate a per se targeting requirement but simply did not believe that Netflix had any other compelling justification to use the funeral video without Sepi’s permission. If so, the Tenth Circuit may clarify its position after it rehears the case.

This open question of law is important to the future of copyright fair use. In individual cases, the outcome of the transformative use factor is highly predictive of whether a defendant’s fair use defense will ultimately rise or fall. As a result, this first factor is often regarded as the sine qua non of fair use, because it strikes at the heart of the borrower’s artistic justification.

With valid interests on both sides of the debate, the courts may soon clarify whether success on the transformative use factor requires targeting of the original work or, as Warhol implies, whether another “compelling justification” can in theory suffice. If the latter, it will be up to future judicial decisions to appropriately bound the doctrine to promote true fair uses while also respecting copyright ownership.

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2 comments so far. Add my comment.

  • [Avatar for Anon]
    Anon
    June 12, 2024 05:33 pm

    The easy answer is “No” – and the key is to evaluate the type of “transformation” being claimed.

    Warhol: extremely weak (transformation was merely a business use quite distinct from the article itself.

  • [Avatar for PeteMoss]
    PeteMoss
    June 12, 2024 11:37 am

    Good article. Thank you. Fair use is tough because even if fair use is found, the defendant still loses litigation time and treasure. Consent is to fair use what truth is to libel.

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