District court denies HBO’s motion to dismiss artist’s copyright infringement claim based on use of plaintiff’s painting in a documentary about Slenderman case, rejecting HBO’s fair use defense as premature.
Plaintiff Joe Coleman, an artist who sells his artwork for thousands of dollars and often licenses his works for print and other reproductions, created “No One Can Enter the Lord’s House Except as a Child,” a painting inspired by the 2014 stabbing of a girl in Wisconsin by her two friends. As the young attackers explained it, their motivation for the crime was to appease the popular internet-based horror character Slenderman. Coleman created the painting, which depicts Slenderman wrapping rootlike fingers around the young girls’ arms, to “comment on the Slenderman Case and the mythology surrounding it.”
In January 2017, Home Box Office Inc. and HBO Films broadcast a true-crime documentary film titled Beware the Slenderman focusing on the stabbing. The film featured Coleman’s painting in a montage of images and animations depicting the Slenderman stabbing. In total, the painting was displayed for roughly 25 seconds during the final frames of the film, starting with a close-up shot that zoomed out to reveal the entirety of the work displayed on a browser screen being viewed by an unidentified individual.
Subsequently, Coleman sued HBO for copyright infringement and contributory infringement. HBO moved to dismiss the complaint, arguing that the appearance of the painting in the documentary was fair use and that Coleman had failed to allege contributory infringement by HBO. The court applied the four fair use factors (whether the use was transformative, the nature of the copyrighted work, the amount and substantiality of the use, and the effect of the use on the potential market for the copyrighted work) and found that none weighed in favor of HBO.
With respect to the first factor, HBO argued that the use of the artwork was transformative—that by including the painting in a montage, the documentary was commenting on “the way that the girls’ crime has become part of the broader, ever-developing online mythology of Slenderman” and offered broader commentary on the danger posed to “at-risk children” by the internet. Coleman countered that the inclusion of his painting in the documentary communicated nothing about the online mythology of Slenderman, especially since his work was a physical painting, and that HBO’s use mirrored the message he communicated with his painting.
Though documentaries fall within the protected categories contained within Section 107 of the Copyright Act and are entitled to the presumption of fair use, the district court concluded that dismissal at this early stage of litigation was improper because “further development of the record is needed to … identify the intended purpose behind the film’s use of the work and what, if any, new insights and understandings are created by defendant’s use.” In reaching this conclusion, the court noted that HBO had not made any changes to Coleman’s work and “[HBO is] not entitled to a finding that their use of the [painting] is transformative solely because they display [it] in an Internet browser.” The court noted that while HBO’s stated purpose for their use of the painting was plausible, plaintiff’s explanation for how HBO used his work in a non-transformative way as an illustrative aid was equally plausible.
The court also concluded that none of the remaining fair use factors weighed in HBO’s favor and that dismissal of plaintiff’s infringement claim was not warranted at this time. As to the second factor, the painting was a creative work—the kind of work the Copyright Act is intended to protect. As to the third factor, because no determination could be made as to the transformative nature of HBO’s use of the painting, a proper assessment of the purpose and character of HBO’s use, and correspondingly whether HBO used no more of the work than necessary to achieve that goal, was not possible at this stage. Finally, because plaintiff had alleged that he profits from the sale and licensing of his paintings, he had sufficiently alleged the existence of a derivative market for the painting and that the market had been harmed by HBO’s use.
The district court did dismiss plaintiff’s claim for contributory infringement, based upon HBO’s depiction of the work being viewed by an individual on an internet browser. This use, plaintiff contended, created the false impression that others could freely use the painting on the internet and on commercial television without getting the artist’s permission. He also argued that in labeling the painting as “fan art,” HBO caused or contributed to infringement of his work by others. The court dismissed the contributory infringement claim, however, finding that plaintiff had failed to allege any direct infringement by a third party. Accordingly, HBO could not be liable contributorily.