Joe Exotic in Tiger King.
When I sat down to watch America’s favorite big-cat-themed streaming show, the last thing on my mind was that it would be relevant to my professional life. But then, out of nowhere, I found myself screaming at the television, “That’s a fair use!”
At the end of Tiger King (spoiler alert!), we learn that Joe Exotic—a mullet-sporting, glitter-leopard-print-wearing man from Oklahoma and America’s quarantine obsession—had settled his copyright case with Carole Baskin. But Joe Exotic was clearly in the right. What happened? Bad lawyering? Did Joe Exotic’s attorney make a deal that was smaller in total cash in conjunction with the settlement of Baskin’s meritorious companion trademark claim? Or was Exotic bullied into submission, not wanting to keep spending on attorneys when he knew Baskin and her team were going to keep coming after him?
In the copyright case in question, volunteers at Carole and Howard Baskin’s Big Cat Rescue took a picture smiling happily while holding dead bloody rabbits. While the Baskins have improperly tried to scrub the image from the internet using copyright law, I found a copy thanks to the Internet Archive’s Wayback Machine. While the women were smiling about feeding the rabbits to other animals, Joe Exotic started using the photo in many places to highlight what he saw as the hypocrisy of the Baskins’ accusations against him for cruelty to animals. Carole proceeded to sue him for copyright infringement because of his use of the photo. Before the case went to trial, Joe Exotic settled for $50,000 and was enjoined from further use of the photo in question.
Unfortunately, now we need to go through the boring copyright law. When someone takes a photograph, that person automatically has a copyright for that photo. Copyright holders can transfer their rights to others, which happened in the case of the smiling bloody rabbit photos—the rights were granted to Baskin. On the face of it, it may seem pretty clear. Joe Exotic used a copyrighted photograph without the permission of the owner; he must be guilty of a copyright violation.
However, that is not how copyright law works. Copyright has limits, known as the fair use doctrine, which is codified into U.S. copyright law. Put in its simplest terms, fair use allows copyrighted works to be used without the permission of the author in certain limited circumstances where the use is one that benefits society. Common examples of fair use include allowing teachers to photocopy handouts for a classroom or quoting an author in a newspaper article. Fair use enables copyright law to coexist with the First Amendment’s freedom of speech protections and looks to prevent copyright from being used as a weapon rather than its true purpose: to incentivize creativity. It’s pretty clear that Baskin was using her copyrights as a weapon, to try and silence her sworn enemy from exercising his right to free speech.
Criticism, commentary, or parody of an existing copyrighted work is a clear fair use that courts have allowed time after time. After all, we don’t want people using copyright to shield themselves from criticism. Otherwise, a copyright holder could prevent a movie critic from giving a bad review of their movie that used a clip from it. That is exactly what happened in this case. Baskin was suing a rival for using a photograph to criticize her.
Unfortunately, that is not where this copyright story ends. (I’m not going to get into alleged murder plots or animal abuse or meth use—I’m sticking with the intellectual property elements here.) It gets far worse. Baskin was not just subjecting Joe Exotic to massive legal expenses against a copyright claim that had little merit. She engaged in the very definition of a “strategic lawsuit against public participation.” SLAPP suits are an abuse of our legal system, with people trying to silence or punish critics by subjecting them to lawsuits that are expensive, time-consuming, and often just not worth it for the defendant. As an example, Oprah Winfrey was sued by Texas Cattle Ranchers after broadcasting a show on the dangers of meat and mad cow disease. The case was baseless; the cattle ranchers just wanted to threaten and quiet Oprah. She was forced to go to court, where she won, and then to an appellate court, where she also won. Oprah had the money to stand her ground and fight, but not everyone does.
While some states have passed legislation attempting to prevent SLAPP lawsuits, the federal government has not. There have been efforts to do so—the most recent introduction of federal anti-SLAPP even received a congressional hearing in 2016. Unfortunately, two groups have been stonewalling the bipartisan effort: trial lawyers and copyright attorneys (and, with them, major copyright holders). Trial lawyers opposing federal anti-SLAPP makes sense. If enacted, it would take a big tiger bite out of their business. Copyright holders care because copyright is a federal action in federal courts; state anti-SLAPP statutes don’t apply. Federal legislation would be different. Hollywood, the music industry, the video game industry, photographers, publishers, and many others that profit off the copyright ecosystem will oppose any legislation, no matter how sensible, because they do not want anything to prevent copyright suits from being brought.
Copyright is the perfect vehicle for SLAPP suits. First of all, copyright is a government-granted, exclusive right to speech. There is no better way to prevent someone from publicly criticizing you than to use copyright law. Copyright lawsuits are expensive and place enormous costs on defendants. Fair use has to be raised once you are sued, so defendants will likely have to spend more. The potential damages are extreme: For every violation of a copyright, you can get $150,000 in statutory damages. Additionally, copyright law has injunctive relief—you can actually stop the speech from happening.
One would think that Congress would recognize this and specifically include copyright in federal anti-SLAPP efforts. But that is not happening anytime soon. Instead, thanks to their lobbying and fundraising, copyright holders have been successful in convincing senior members of Congress in both parties to exclude copyright. These members have told federal anti-SLAPP advocates that they need to be willing to give up copyright for a chance of being successful. There is not a single good policy argument to exclude copyright. Copyright litigation abuse is exactly what anti-SLAPP legislation should be designed to prevent. This type of abuse is the reason we need a federal fix.
In my dream world, the saturation of Joe Exotic’s story will help everyday Americans understand the relevance of copyright law in our daily lives—maybe even spur federal lawmakers to introduce and pass anti-SLAPP law without a special carve-out for copyright.
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