From Tiger King To Censorship King: Copyright Lobbyist Cheers On SLAPP Copyright Suit Featured In Tiger King
from the this-does-not-make-copyright-look-good dept
If there’s one thing that nearly everyone can agree on while locked down during this COVID-19 pandemic, it’s that Netflix’s show Tiger King is the most batshit thing to watch. Everything about the documentary series played as if it was a Christopher Guest mockumentary, except in real life (and, incredibly, with characters even more colorful than Guest’s usual crew). I watched it about a week after it came out (i.e., a week after everyone else in the world had watched it) and was surprised that no one mentioned to me that amidst all the other craziness regarding various competing keepers of “big cats,” there was a copyright lawsuit.
As is all too common these days, the documentary didn’t do a particularly good job describing the legal issues at the heart of the dispute, and mentioned both trademark and copyright claims that came up. There were actually three separate lawsuits — one over trademark and two over copyright (and then a few follow on efforts that we won’t even get into). To be clear, the trademark claims, were more legitimate — though not a complete slam dunk. You can see the court docket here. I still feel like many trademark cases are bogus, but this case seemed like the perfect example of what trademark law is supposed to be for: to stop a pretty obvious copycat from trying to confuse the public into who is who. And that’s exactly what Joe Exotic was attempting to do in setting up Big Cat Rescue Entertainment Group, for his “traveling show” (bringing tigers and such to malls) in a manner that was designed to confuse the public into thinking he was actually his nemesis organization Big Cat Rescue Corp (which doesn’t do shows). In fact, despite being based in Oklahoma, Joe Exotic used a Florida phone number for the BCR “Entertainment” Group, knowing full well that the actual BCR was based in Florida.
So, that sounds like a standard issue trademark infringement situation… Except, it wasn’t even that clear. While Carole Baskin and BCR had a trademark on BCR’s logo, they did not have a registered trademark on the name — nor the use of “snow leopard eyes.” The website has since changed, but here’s a quick screenshot from the Netflix episode (Episode 4) that discusses the cases. On the left is Joe Exotic’s “copycat” and on the right is Carole Baskin’s website at the time:
The crazy thing is (probably by total coincidence) the elements that Joe Exotic copied were not the elements that were covered by the registered trademark. That said, Baskin had a strong case for common law trademark infringement, which is almost as good, but the case (contrary to what’s said in the documentary) did not actually end with the court ruling that Baskin won the trademark dispute. While the documentary implies that Baskin won the case, that’s not quite what happened. Joe Exotic had filed some (mostly silly) counterclaims in his response to the complaint, trying to throw a bunch of fairly weak defamation claims back at Baskin (and a few equally weak tortious interference claims).
Carole Baskin and BCR sought to have the counterclaims thrown out on summary judgment, which is exactly what the judge did. While the clip in the documentary shows Howard Baskin saying the judge ruled in their favor, that was only on dismissing Joe Exotic’s counterclaims, and not on the actual trademark issue. That was still set to go to trial, and perhaps recognizing how insanely costly an actual trial was going to be, that’s when the two sides agreed to settle, with Joe agreeing to pay nearly a million dollars (though as the documentary makes clear, he had little intention of actually doing so).
The main copyright case covered in the documentary (full docket here), however, is just… bad. It’s a really bad case. It’s an obvious SLAPP suit, filed on very questionable grounds, as a pile-on lawsuit while the trademark lawsuit discussed above was still chugging along. The details here are just ridiculous. Joe Exotic had come across a photo of Baskin’s employees happily holding up some dead rabbits that they were going to feed to the tigers, and made a big deal out of her killing the rabbits (it appears that this was not, as we find out, because he’s opposed to killing animals — because he’s not — but apparently because he hates Carole Baskin). Joe used the photo on social media and in a variety of videos as part of his never-ending hate-campaign against Baskin. I’m not going to post the photo here, but will say that it’s both in the documentary and if you do want to see it, it’s in the court filings.
Baskin had not taken the photograph, nor registered it, but had purchased the rights to the photograph from the photographer, Julie Hannon, then registered the photograph, and immediately issued DMCA notices on Joe’s use of the images. Joe counternoticed the DMCA takedown claiming that the “material was removed due to a mistake or misidentification.” He should have claimed fair use, because it clearly was. But he didn’t, and then Baskin sued.
Again, this is quite clearly an abuse of copyright law to censor fair use of the image. No matter what you think of either of the two individuals (neither of whom comes out of this looking good), there’s no way the use in question was not fair use, and the purchasing of the rights and the late registration, were quite clearly just aimed at censoring Joe Exotic, the critic, and not for any legitimate copyright purpose.
While Joe eventually did make a fair use claim, the fact that he (stupidly) didn’t use that as his claim in the YouTube counternotice actually opened him up to Baskin adding a DMCA 512(f) (!!!) claim for making false statements in his counter notice. Joe’s legal team argued fair use, failure to state a claim, misuse of copyright, and a few other similar defenses. Most of these got tossed because (they were nonsense and because) Joe Exotic’s legal team didn’t actually support most of the defenses, making it easy for the judge to toss them. The one defense that the court did not rule on was the fair use defense, which the judge said should be determined by a jury at trial. For what it’s worth, the judge also claimed the 512(f) claim should go to trial as well.
There were a few more twists and turns in the case before, once again, the case settled with a consent decree, with Joe agreeing to pay statutory damages of $50,000. The statutory damages part is interesting, in part, because statutory damages are supposed to only be available for infringement that happens after registration — and registration is supposed to occur within 3 months of “first publication” for statutory damages to be available. In this case, it’s unclear what actually counts as “1st publication” or if there was a first publication by the photographer.
Separately, even though the initial infringement occurred prior to registration, it appears that after Baskin sued, Joe Exotic decided to keep on posting the image over and over and over again to various social media, blogs, and videos, which might then open him up to statutory damages. Of course, the fact that the case was settled kind of makes the whole question moot anyway. It feels odd that the settlement agreement said it was for statutory damages. In the terms of a settlement agreement, it’s not clear why the type of damages matters at all. It’s just been agreed to by the parties.
That said, what’s amazing to me is that copyright maximalists seem to be cheering on this clear abuse of copyright as a form of a SLAPP suit. The Copyright Alliance, a Hollywood front group that lobbies for ever more aggressive anti-consumer copyright policies, put out a blog post happily explaining this lawsuit as if it were a perfectly normal and reasonable copyright lawsuit. In fact, the Copyright Alliance — somewhat incredibly — says that Joe Exotic should have just taken down this obviously fair use image when he got the DMCA takedown notice, to avoid the lawsuit, which was clearly filed as a pile-on to go with the trademark lawsuit:
Joe Exotic may have been able to avoid the two copyright infringement lawsuits and not been liable to Big Cat Rescue at all. Big Cat Rescue had sent a notice under the Digital Millennium Copyright Act (?DMCA?) requesting the Photographs and videos containing the alleged infringing Photographs be taken down from the respective websites.
But instead of taking down the alleged infringing material, Exotic made the deliberate choice to challenge Big Cat Rescue?s claims by filing a counternotice contesting the infringement claims. After the counternotice was filed, under the law, Big Cat Rescue had 10 days to file a lawsuit in federal court, otherwise Exotic would be permitted to repost the photos.
Had Exotic not filed the counternotice, it is possible that Big Cat Rescue would have simply been content with the photos (and videos containing the photos) being taken down and it may not have sued Exotic. It should also be pointed out that, not only did the court hold that Exotic was liable for copyright infringement, it also held that he lied in the counternotice that he filed.
This is quite incredible. This is basically the Copyright Alliance ignoring fair use (which it literally never mentions), ignoring the obvious SLAPP nature of the lawsuit, and falsely claiming that the court held that Joe Exotic lied in the counternotice (it did not, it said that it was a matter to be determined at trial):
The evidence submitted by Plaintiff demonstrates that genuine disputes exist as to whether any of the Defendants “knowingly” misrepresented facts. Plaintiff, therefore, is not entitled to summary judgment.
But even more bizarre is the idea that if he’d taken down the images “it is possible that Big Cat Rescue would have simply been content…” Given that this was one of a few pile-on lawsuits all designed to go after Joe Exotic, the idea that Baskin would have simply been content to drop things if he’d taken the images down upon the DMCA notice defies all sense of reality. It’s nonsense.
Even worse: in a Twitter discussion about whether or not this lawsuit was a SLAPP suit, a former top US Copyright Office official, and now top USPTO official, David Carson, misleadingly claimed that it wasn’t a SLAPP because the court awarded judgment to Baskin. Except that’s not at all what happened. The case settled before it could go to trial, just like in the trademark case, and the only award was what was agreed to (perhaps in bad faith by Joe Exotic) as part of the settlement, and not because the judge or a jury actually weighed all the facts.
Separately, this case stretched from 2011 to 2013. At that time, Florida had a very, very narrow anti-SLAPP law. It only put in place a (slightly) better one in 2015, long after this case was over. So there was no official way to use an anti-SLAPP law to fight this case at the time.
As with the documentary, most of the details of this case are crazy, with crazy personalities. But it’s even more ridiculous when even copyright maximalist lobbyists and (worse) Copyright Office/Patent Office officials try to defend this obvious abuse of copyright law in a SLAPP suit, and argue that the person using the photograph should have just silenced himself to get out of the suit.
Correction: in the original version, we said David Carson worked at the Copyright Office, which is where he used to work, as opposed to running copyright policy for the USPTO, where he currently works (in between he worked for the recording industry). That has since been corrected.