Judge Finds Unlicensed Song in Burlesque Documentary to Be "Fair Use" of Copyright

Netflix is able to prevail over the musicians behind the children's song "Fish Sticks n' Tater Tots."
Courtesy of XLrator Media
"Burlesque: Heart of the Glitter Tribe"

Here's a rather unusual and provocative decision on the copyright front. It involves a burlesque dancer performing what she called a "reverse mermaid" to the children's song "Fish Sticks n' Tater Tots." Her performance was captured by documentary filmmakers for the film Burlesque: Heart of the Glitter Tribe, and subsequently, the song's writers claimed that unlicensed use of their song in the film constituted copyright infringement. On Wednesday, a New York federal judge granted a motion to dismiss from Netflix, Amazon.com and Apple on the basis that the song's incorporation was fair use.

Glitter Tribe was released in 2017, and the song plays for just eight seconds of the film. Nevertheless, most film producers would probably hunt for a license in this situation. The fact that U.S. District Court Judge Edgardo Ramos was able to conclude fair use without any discovery in the case makes it even more extraordinary.

Tamita Brown, Glen Chapman and Jason Chapman — the musicians who created the song — argued that because the film used an "unaltered version," the incorporation was hardly transformative under the first factor measuring a potential fair use.

Judge Ramos disagrees.

He writes: "Whereas the Song communicates a light-hearted children's story about a student looking forward to lunch in the school cafeteria, the Film depicts decidedly mature themes that portray fish sticks not as a lunch food, but as a component of a 'reverse mermaid.'"

OK, but how about the fact that the use of the song lasted just seconds? Sure, responded the musicians, but what the film took was the song's "heart," as the chorus is what gave the song its name.

Analyzing the amount and substantiality of the use, Judge Ramos concludes that the film took just what was necessary.

He writes that "use of the 'heart' of a work is permissible when it is necessary to achieve its transformation. Such is the case with Defendants' use — the dance depicted in the Film requires the phrase 'fish sticks and tater tots' to communicate the 'reverse mermaid' transformation."

If a certain stripper routine requiring use of a song isn't sufficiently mind-blowing, there's finally the last factor of fair use analysis — the effect upon the potential market or value of the plaintiffs' work.

Judge Ramos says it weighs "decisively" in favor of Netflix, Amazon and Apple because the musicians acknowledge their song is directed at children, whereas the film is for a mature audience. 

"Put another way, it is unlikely that parents would purchase copies of the film for their minor children so that they could hear the excerpt of the Song in the Film," states the opinion.

But it doesn't end there. (Read the full opinion.)

The musicians argued that if unlicensed use of songs in films became widespread, they'd be precluded from earning any licensing income. The judge doesn't want to look at the theoretical markets.

Ramos responds, "Here, it is unreasonable to consider the potential uses named by Plaintiffs, which were unalleged in their complaint and only provided in response to Defendants' motion. Because Defendants met their burden by showing that the Film's secondary use would not usurp that of the original, other similarly hypothetical uses would equally not deprive them of prospective audiences."

Dismissal is granted with prejudice, meaning that plaintiffs aren't even being given the opportunity to cure deficiencies with an amendment.