Authored By: Ludovica Corsello
Trinity College Dublin
Case Citation and Basic Information
Brown et al. v. Netflix, Inc. et al., No. 19 Civ. 1507 (ER), 2020 U.S. Dist. LEXIS 92739 (S.D.N.Y. May 27, 2020) (Ramos, J.).
Introduction
Brown et al. v. Netflix, Inc. et al. addresses the boundaries of the fair use doctrine under U.S. copyright law, specifically in the context of music used within audiovisual works distributed on streaming platforms.[1] The case became particularly significant because it illustrates how courts assess transformative use when a copyrighted song is incorporated into a documentary film, weighing the purpose and character of the use against the interests of the original creators. Although the underlying use does not seem particularly relevant on the surface, the decision offers a clear application of the four-factor fair use test to digital distribution contexts.[2]
Factual Background
The plaintiffs, Tamita Brown, Glen S. Chapman, and Jason T. Chapman, are musicians who composed and copyrighted the children’s song “Fish Sticks n’ Tater Tots” in 2011. The song narrates a student’s journey from her classroom to the school cafeteria for lunch, where she eats fish sticks and tater tots.
In 2017, the documentary film Burlesque: Heart of the Glitter Tribe, chronicling the lives of burlesque dancers in Portland, Oregon, was released. In one scene, a dancer performs a food-themed act built around a “reverse mermaid” concept, who steps behind a sign reading “hot oil” and emerges transformed into “fish sticks”. During the two-minute and fortyseven second routine, an eight-second segment of the plaintiffs’ song is played, with its chorus repeated five times, while the remainder of the routine’s music consists of other songs. The film was made available for streaming, purchase, or rental on the defendants’ platforms.
In February 2019, the plaintiffs filed suit against the defendants, alleging direct copyright infringement of their exclusive rights of public performance and reproduction under 17 U.S.C. § 106(1) and (4), along with claims of contributory, vicarious, and inducement infringement.[3] The defendants moved to dismiss the claims against Netflix and Apple and to enter judgment on the pleadings against Amazon, arguing that their use of the song constituted fair use.
Legal Issues
Issue 1: Whether the defendants’ use of an eight-second excerpt of the plaintiffs’ copyrighted song, “Fish Sticks n’ Tater Tots,” within a documentary film constituted fair use under Section 107 of the Copyright Act, thereby precluding liability for direct copyright infringement under 17 U.S.C. § 106(1) and (4)?[4]
Issue 2: Whether the character of the use, incorporation of the song into a documentary scene depicting a burlesque performance, was sufficiently transformative to weigh in favor of a fair use finding under the first statutory factor?
Issue 3: Whether, absent direct infringement by the defendants, the plaintiffs could sustain claims for contributory, vicarious, and inducement of copyright infringement?
Arguments Presented
5.1 Petitioners’ (Plaintiffs’) Arguments
The plaintiffs initiated their lawsuit in February 2019, asserting that the defendants had directly infringed their exclusive rights under 17 U.S.C. § 106(1) and (4) by reproducing and publicly performing their copyrighted song without authorization.[5] Beyond direct infringement, they also brought claims for contributory, vicarious, and inducement of copyright infringement.[6] In response to the defendants’ assertion of fair use, the plaintiffs argued that such a determination was premature at the motion-to-dismiss stage, contending that the factual record, including whether the film was genuinely a documentary or a commercial production, remained underdeveloped and required discovery.[7] They further argued that the defendants’ use exceeded what was necessary, asserting that only the phrase “fish sticks” was required to convey the intended “reverse mermaid” transformation, making the repeated use of “tater tots” excessive under the third fair use factor. Finally, they maintained that the film’s purpose was purely commercial and that this commercial character, combined with the unauthorized use, weighed against a finding of fair use.
5.2 Respondents’ (Defendants’) Arguments
The defendants (Netflix, Amazon, and Apple) did not dispute the validity of the plaintiffs’ copyright. They jointly moved to dismiss the claims against Netflix and Apple and, for judgment on the pleadings, against Amazon, arguing that their use of the song constituted fair use under 17 U.S.C. § 107, a complete defense to all of the plaintiffs’ claims. Relying principally on Cariou v. Prince, 714 F.3d 694 (2d Cir. 2013), they argued that use of the “heart” of a copyrighted work is permissible where necessary to achieve the secondary work’s transformation.[8] They characterized the film’s incorporation of the song as transformative, serving a documentary purpose of commentary rather than merely reproducing the original work, and argued that the commercial nature of their streaming platforms was not determinative of the fair use inquiry given the transformative character of the use.
Court’s Reasoning and Analysis
The court, presided over by Judge Ramos, first addressed a threshold procedural question: whether fair use could properly be resolved at the motion-to-dismiss stage at all. Rejecting the plaintiffs’ argument that the issue was premature absent discovery, the court held that fair use may be decided on the pleadings where the facts necessary to the analysis are evident from the complaint and the film itself, which was incorporated by reference. Having cleared this threshold, the court applied the four statutory fair use factors under 17 U.S.C. § 107.[9]
On the purpose and character of the use, the court found the film’s incorporation of the song highly transformative. Although the song itself remained unaltered, its placement within a burlesque routine centered on a “reverse mermaid” concept gave it a “new and different function” and a “new aesthetic” distinct from its original context as a children’s song about school lunch. In reaching this conclusion, the court relied heavily on the Second Circuit’s reasoning in Cariou v. Prince, 714 F.3d 694 (2d Cir. 2013), which had held that borrowing even the “heart” of a copyrighted work can be fair use where necessary to achieve the transformation.[10] Applying this logic, the court rejected the plaintiffs’ argument that the use was purely commercial and therefore disqualifying, reasoning that even assuming commercial intent, the transformative nature of the use meant the first factor still favored the defendants.
The second factor, the nature of the copyrighted work, was treated as neutral. The court acknowledged the song’s creative character but found this consideration of limited weight once transformative use is established, since the two inquiries substantially overlap.
On the third factor, the court rejected the plaintiffs’ contention that the defendants had used more of the song than necessary, specifically their argument that only the phrase “fish sticks”, and not the repeated “tater tots”, was required to convey the transformation. The court held that fair use does not require using the shortest possible excerpt, and that repeating the chorus was reasonably necessary to depict the performance as it actually occurred. Although the excerpt arguably captured the song’s “heart,” its brevity relative to the full 190-second song meant the use was neither quantitatively nor qualitatively excessive.
Finally, on market effect, the court rejected the plaintiffs’ claim that the use harmed derivative markets for the song, such as its use as dance accompaniment or background music. It reasoned that the divergent audiences (a children’s song versus a documentary centered on adult burlesque performance) made it implausible that consumers would treat the film’s excerpt as a substitute for the original song.
Concluding that the first, third, and fourth factors favored the defendants and the second was neutral, the court held that the use was fair and granted the motion to dismiss. The decision was issued by a single district judge, with no concurring or dissenting opinions.
Judgment and Ratio Decidendi
7.1 Judgment
The court granted the defendants’ motion to dismiss (and the motion for judgment on the pleadings as to Amazon), holding that the film’s use of the plaintiffs’ song constituted fair use under 17 U.S.C. § 107.[11] Because fair use operates as a complete defense to all forms of copyright infringement, the court’s finding disposed of the plaintiffs’ claims for direct, contributory, vicarious, and inducement infringement without needing to address each theory separately. The plaintiffs’ complaint was dismissed. No damages, injunctive relief, or other remedy was granted to either party, and no further compliance directions were issued, as the dismissal ended the litigation at the pleadings stage without proceeding to discovery or trial.
7.2 Ratio Decidendi
The court held that a secondary use of a copyrighted work, even one incorporating the “heart” of that work, constitutes fair use under 17 U.S.C. § 107 where the use is transformative, serving a new purpose or meaning distinct from the original, and where the amount used is reasonably necessary to achieve that transformation rather than merely convenient.[12] This holding confirms that the categories of favored purposes listed in § 107 are illustrative rather than exhaustive, and that a use falling outside these enumerated examples may still qualify as fair use if it satisfies the four-factor balancing test, particularly where it is genuinely transformative. The binding principle is that transformativeness under the first factor can outweigh a use’s commercial character, and that courts may resolve fair use at the pleadings stage where the necessary facts are apparent from the complaint and materials properly considered on a motion to dismiss.
By contrast, the court’s observations about the specific derivative markets the plaintiffs identified and its comparison of the song’s child audience to the film’s adult audience were case-specific applications of the fourth factor, illustrative of the reasoning, but not statements of a generalizable rule, and therefore properly classified as obiter rather than ratio.
8. Critical Examination: Fair Use, International Treaties, and Jurisdictional Differences
8.1 Significance of the Decision
Brown v. Netflix clarifies that transformative use, once established, can outweigh a use’s commercial character even when the borrowed material is reproduced without alteration, extending the logic of Cariou v. Prince to the context of incidental music use in documentary film.[13] The decision also confirms that § 107’s enumerated purposes are illustrative rather than exhaustive, since the film’s use fit none of the listed categories yet still qualified as fair use.[14] This flexibility distinguishes U.S. law sharply from the UK’s narrower “fair dealing” model under the Copyright, Designs and Patents Act 1988, and from the EU’s closed list of exceptions under the InfoSoc Directive.[15]
8.2 Implications and Impact
The decision primarily benefits documentary filmmakers and the streaming platforms that distribute their work by reducing the practical risk and cost of incidental third-party content in nonfiction films. Its procedural holding is arguably as consequential as the substantive ruling, since it discourages weak infringement claims by avoiding costly discovery. The case was subsequently cited in an amicus brief before the U.S. Supreme Court in Andy Warhol Foundation for the Visual Arts v. Goldsmith (2023) as an example of documentary filmmaking’s reliance on fair use doctrine.[16]
8.3 Critical Evaluation
The court’s reasoning is efficient and doctrinally consistent with Cariou, but arguably underanalyzes the second factor, dismissing the song’s creative nature as of “limited usefulness” once transformativeness was found, thereby risking the collapse of the four-factor balancing test into a single-factor inquiry.[17] This concern gained force after Warhol v. Goldsmith, where the Supreme Court rejected an overly broad transformative-use finding and reasserted that commercial purpose and market substitution deserve independent weight.[18]
9. Conclusion
Brown v. Netflix confirms that a secondary use incorporating even the “heart” of a copyrighted work can qualify as fair use where it is genuinely transformative and the amount used is reasonably necessary to that transformation. Applying the four-factor test at the pleadings stage, the court found the film’s documentary purpose sufficiently distinct from the song’s original context to outweigh the song’s commercial distribution and the excerpt’s unaltered nature.[19]
The single most important takeaway is that courts may resolve fair use disputes early, without discovery, where the necessary facts are apparent on the face of the complaint, lowering the practical risk documentary filmmakers face when incorporating incidental third-party content.
What will likely be remembered is the case’s contribution to the post-Cariou line of transformative-use reasoning, though its durability is now uncertain following the Supreme Court’s narrower approach in Warhol v. Goldsmith (2023).[20]
Bibliography
Table of Cases
Andy Warhol Foundation for the Visual Arts, Inc v Goldsmith, 598 US 508 (2023)
Brown v Netflix, Inc, No 19 Civ 1507 (ER), 2020 US Dist LEXIS 92739 (SDNY, 27 May 2020)
Brown v Netflix, Inc, 855 F App’x 61 (2d Cir 2021)
Cariou v Prince, 714 F3d 694 (2d Cir 2013)
Table of Legislation
National
Copyright Act of 1976, 17 USC (1976)
Copyright, Designs and Patents Act 1988 (UK)
International
Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the harmonisation of certain aspects of copyright and related rights in the information society [2001] OJ L167/10
[1] Brown v Netflix, Inc, No 19 Civ 1507 (ER), 2020 US Dist LEXIS 92739 (SDNY, 27 May 2020), aff’d 855 F App’x 61 (2d Cir 2021); Copyright Act of 1976, 17 USC (1976).
[2] 17 USC § 107 (1976).
[3] 17 USC § 106(1), (4) (1976).
[4] 17 USC § 107 (1976); 17 USC § 106(1), (4) (1976)
[5] ibid.
[6] Brown v Netflix, Inc.
[7] ibid.
[8] Cariou v Prince, 714 F3d 694 (2d Cir 2013).
[9] 17 USC § 107 (1976).
[10] Cariou v Prince (n 8).
[11] 17 USC § 107 (n 9)
[12] ibid.
[13] Brown v Netflix, Inc, No 19 Civ 1507 (ER), 2020 US Dist LEXIS 92739 (SDNY, 27 May 2020); Cariou v Prince, 714 F3d 694 (2d Cir 2013).
[14] 17 USC § 107 (1976).
[15] Copyright, Designs and Patents Act 1988, ss 29–30; Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the harmonisation of certain aspects of copyright and related rights in the information society [2001] OJ L167/10, art 5.
[16] Andy Warhol Foundation for the Visual Arts, Inc v Goldsmith, 598 US 508 (2023).
[17] Cariou v Prince (n 13).
[18] Andy Warhol Foundation for the Visual Arts, Inc v Goldsmith (n 16).
[19] Brown v Netflix, Inc (n 13).
[20] Andy Warhol Foundation for the Visual Arts, Inc v Goldsmith (n 18).
