BY:Neil J. Rosini
A federal court in Brooklyn refused to throw out a copyright infringement suit against HBO for use of a painting in a 2017 documentary about a stabbing attack by two 12-year-old girls. Proclaiming themselves “proxies” of the internet-based fictional character known as Slenderman (or Slender Man), the girls reportedly sought to prove his existence and protect their families against him by killing their classmate. The documentary, “Beware the Slenderman,” discussed how the Slenderman meme “spread to every available platform and medium on the web,” potentially inciting “vulnerable adolescents” to violence. It told the story of the attack through jailhouse interrogations of the perpetrators, footage of courtroom testimony and interviews with family members and experts. It also included a lingering shot of a painting by the artist, Joe Coleman, that gave rise to the lawsuit.
The intricately detailed painting titled “No One Can Enter the Lord’s House Except as a Child (Slenderman)” depicted the two attackers in manacles beneath a hovering Slenderman figure, accompanied by painted text with details of the crime. The painting was onscreen for 25 seconds beginning with a closeup scan from bottom to top that pulled back to a wider shot of the painting on a computer screen. It appeared at the end of the film after a series of images and animations showing the girls committing their crimes. HBO did not obtain a license to show the painting.
In seeking dismissal, HBO relied on fair use, which applies a four-part balancing test to determine whether unlicensed uses of copyrighted works infringe copyright. The most important issues in that test are whether the use is “transformative” (that is, whether it places the original work in a new context that adds “a new expression, meaning or message” rather than simply repackaging or republishing it); and whether the type of use, if it became widespread, would deprive the plaintiff of a market for the work. The other two factors are the nature of the original work (works of the imagination, including paintings, are less susceptible to fair use, but in this instance the court considered this factor neutral) and the amount and substantiality of the part of the work borrowed (here, the whole was taken, which weighed against fair use).
HBO argued that its use was transformative because it was part of a “visual montage of various works” in the film depicting the Slenderman case; the borrowing commented on the “ever-developing online mythology of Slenderman”; and it showed how the Internet posed “a particular danger to at-risk children” like the attackers. Further it commented on the presence of the painting on the internet along with other Slenderman memes “for any at-risk young person to see.” The artist argued that far from being transformative, the film used the artwork “for precisely the same purpose for which it was created”; moreover, it was a physical painting rather than part of an online mythology so the purpose professed by HBO didn’t fit.
The judge denied dismissal on several grounds, starting with the issue of transformativeness. The court held that HBO’s explanation of its use, while reasonable, was “not the only plausible explanation” and instead the use might be regarded as “an illustrative aid depicting the subjects of the film” (the two young girls and Slenderman) for the purpose of conveying the same “message and purpose” contemplated by the artist. Merely framing the painting in an internet browser within the documentary did not necessarily make it transformative. More facts had to be developed in the course of the lawsuit to “clarify” where HBO obtained the artwork and “identify the intended purpose behind the Film’s use of the [painting] and what, if any, new insights and understandings are created by” that use.
On the question of market harm, the court accepted at this early stage of the proceedings the plaintiff’s allegation that “licensing his paintings for use in movies and television shows is an important source of [his] revenue,” which weighed against a finding of fair use.
Dismissal of a copyright suit, as HBO unsuccessfully attempted, based solely on the plaintiff’s complaint without need for depositions and other discovery, is a big deal. It not only would eliminate the uncertainties of further litigation, including a potential loss at trial, but also would save a great deal of money that now will be spent on proceedings alone (assuming the matter isn’t settled). The principal obstacle to that dismissal was ambiguity in the purpose of HBO’s use. Given the painting’s placement at the conclusion of the film, its relatively lengthy appearance, and the arguably “illustrative” character of its use, the court was not prepared without further legal proceedings to find it transformative, which had a decisive bearing on the outcome.
Fair use is at its best in a documentary when the material being borrowed is the focus of comment or criticism and not used merely for “illustrative” effect. While montages showing a sequence of third party works that support (for example) a historical, legal, or socially-oriented point can qualify as fair use, HBO could not demonstrate that this 25-second use necessarily satisfied fair use criteria.