Second Circuit affirms dismissal of copyright infringement suit, finding use of eight-second snippet of children’s song “Fish Sticks n’ Tater Tots” in 2017 burlesque dance documentary to be fair use.

Songwriters Tamita Brown, Glen Chapman and Jason Chapman sued Netflix Inc., Amazon.com Inc. and Apple Inc., alleging that the media companies directly and indirectly infringed their registered copyright in the children’s song “Fish Sticks n’ Tater Tots” by distributing and streaming a documentary film titled Burlesque: Heart of the Glitter Tribe, which incorporates eight seconds of the song without authorization when it incidentally captured a dancer’s use of the song as background accompaniment to her burlesque act. The defendants moved to dismiss on fair use grounds, which the district court granted. (Read our summary of the district court’s decision here.) This appeal followed, and the Second Circuit affirmed the dismissal, holding on de novo review that the use was fair.

The documentary film chronicles the stories of burlesque dancers in Portland, Oregon, through interviews, backstage preparations and onstage performances. One of the scenes documented the creative process developing the “reverse mermaid” routine and its eventual performance as part of the film’s portrayal of burlesque dancers in the city. The film incidentally used eight seconds of the song when it captured a performance of the reverse mermaid routine — in which a dancer dressed with the head of a fish and the legs of a woman changes into brown pants and steps from behind a sign labeled “hot oil” to appear as though she has been transformed into a fish stick. During this performance, eight seconds of the plaintiffs’ song is played, including the lyrics “fish sticks n’ tater tots” sung five times.

The Second Circuit, in a nonprecedential summary order, first affirmed the district court’s decision to conduct the fair use inquiry at the motion to dismiss stage, finding that the defense may be so clearly established by a complaint as a matter of law to support dismissal, even though the issue is often not resolved until the summary judgment stage. The court then analyzed the defendants’ use of the song under the four Section 107 fair use factors.

As to the first factor, the purpose and character of the use, the court focused on the whether the film was transformative — “whether the new work merely supersedes the objects of the original creation, or instead adds something new, with a further purpose or different character, altering the first with new expression, meaning, or message.” The court noted that, when the allegedly infringing work comes within the categories of fair use expressly provided under the Copyright Act, such as criticism, comment or scholarship, there is a strong presumption that this factor favors the defendant. The court concluded that the documentary film provides a commentary on the burlesque art form and its resurgence in Portland, combining performances with cultural commentary and other elements, entitling it to the presumption in favor of fair use on factor one.

Like the district court, the Second Circuit then held that the second fair use factor, the nature of the copyrighted work, weighed in favor of neither set of parties, but that the third and fourth factors weighed in favor of the defendants and dismissal grounded on the fair use defense. With respect to the third factor, the amount and substantiality of the portion used, the court reasoned that only eight seconds of the 190-second-long song are heard and that, although the refrain used may be the qualitative “heart” of the song, it nonetheless was used reasonably in relation to the purpose of commentary and therefore fairly. As to the fourth factor, the effect of the use on the market for or value of the copyrighted work, the court concluded that an eight-second excerpt, out of a more than three-minute-long children’s song, embedded in a documentary film with adult subject matter was unlikely to draw the plaintiff songwriters’ established audience as a preferable substitute for the copyrighted children’s song.

Accordingly, the court held that the film’s use of the eight-second “Fish Sticks n’ Tater Tots” snippet was fair as a matter of law and affirmed the dismissal of the action in its entirety.