Check out my article published June 11, 2024 by on the “IP Watchdog” legal news website!

Celebrity tattoo artist Kat Von D recreated a photograph of a famous musician in ink on her client’s arm and posted photos of the process online. Netflix docuseries “Tiger King” incorporated video footage of a real-life funeral as part of its documentary coverage of the deceased’s husband. The two parties were sued separately for copyright infringement—of the photograph, in Kat Von D’s case, and the video, in Netflix’s case.

Both defendants argued that their uses were fair use. Both plaintiffs argued that there could be no transformative use under the first fair-use factor because the accused use did not specifically criticize or comment on the original work. Kat Von D won; Netflix lost.

These opposite outcomes from the Ninth and Tenth circuits highlight the difficulty of delimiting transformative fair use in view of last year’s Andy Warhol Foundation v. Goldsmith decision.