1:19-cv-01507 (S.D.N.Y. May 27, 2020); No. 20-2007 (2d Cir. May 18, 2021)
Tamita Brown, et al.
“Fish Sticks n’ Tater Tots” (song)
Jon Manning (documentary film maker)
“Burlesque: Heart of the Glitter Tribe” (film)
Comment by Charles Cronin
If the allegations in the Complaint are true, the obvious defendant in this dispute should be Jon Manning, who made the film that incorporated the unauthorized performance of Plaintiff’s song. It seems unlikely that Manning, or Bright Water Media (i.e., his wife and himself) have assets from which Plaintiff might draw damages, or even a settlement. Instead the Plaintiff is following the money, suing three media giants who likely had no knowledge whatever of the purported infringement, and which likely contracted to distribute the movie only after Manning assured them that there were no copyright liabilities associated with the work.
Accordingly, both the allegations, and the work in question, are tawdry. Manning’s attempt to attract attention by recording and circulating titillating content behind the sanctimonious fig leaf of “documentary” is as distasteful as his having used Plaintiff’s children’s song to accompany sexually meretricious imagery. If Netflix, et al. had obtained copyright assurance from Manning, perhaps their most expeditious approach is to cancel the contracts, and dump this dross from their catalogues leaving the Plaintiff and Manning to sort things out.
On May 27, 2020 U.S. District Judge Edgardo Ramos granted defendants’ motion to dismiss. Ramos dismissed the case “with prejudice” presumably to dissuade the plaintiff from pursuing the matter further. Ramos’s opinion pointedly observes that “the record [i.e. the Complaint] is silent as to who created the Film or when,” implying that Plaintiff deliberately avoided identifying the [presumably impecunious] party responsible for the alleged infringement in order to pursue deep-pocketed companies not directly involved in the purported misappropriation. The plaintiff’s suppression or avoidance of this pertinent information was unavailing as Ramos determined that, regardless who copied a brief portion of the plaintiff’s work, this copying could be defended under the doctrine of fair use. While Brown could appeal the dismissal, we optimistically believe this case has reached the end of the line, and no longer belongs in the “InPlay” portion of this website.
But no! Brown appealed Ramos’s decision to the Second Circuit, which held oral arguments on May 5th, 2021. Based on the panel’s expression of a deeply skeptical view of plaintiffs’ attempts to characterize the film other than as a documentary, a Law360 reporter suggested the plaintiffs’ fish sticks now “look like toast.” Time will tell… but it appears the hearing might at least dash any hopes plaintiffs may have harbored to extract a financial settlement from the deep pockets of Amazon, Netflix, and Apple.
On May 18 2021, the Second Circuit issued an Order (below) affirming the district court’s decision, establishing unequivocally that the defending work is a documentary film, that the filmmaker’s use of the brief excerpt of the plaintiff’s song was fair use, and that this was so obvious that the district court was justified in dismissing the complaint out of the gate.