CBS CORPORATION

We are among the outside counsel for the CBS television network.

Unprecedented

100 FOOT WAVE

We're counsel for this HBO Original Series

THE HATCHET WIELDING HITCHHIKER

We're counsel for this sensational Netflix documentary that has taken the internet by storm.

ASHLEY MADISON

We are production and business affairs counsel on this hit Netflix documentary series.

NOBODY SPEAK

We have been counsel for producers of this Netflix documentary about the Hulk Hogan vs. Gawker Media case and its outside funding, showing how big money can be used to silence the media.

RADICAL MEDIA

We are counsel to film/TV production company Radical Media. With offices in New York, Los Angeles, London, Berlin and Shanghai, Radical is one of the premiere companies in the industry.

SHOWTIME NETWORKS, INC.

We are among the outside counsel to Showtime Networks, Inc. At the moment, we are production and claims counsel for their hardhitting, controversial new Sacha Baron Cohen series, WHO IS AMERICA?.

Gold Rush

THE MAURITANIAN

Executive Produced by Russell Smith and Zak Kilberg for our joint venture, Convergent Media. With Jodie Foster, Tahar Rahim, Benedict Cumberbach, and Shailene Woodley.

TRUMP: A SECOND CHANCE?

We are counsel to this embattled BBC documentary that is creating it's own headlines, as the network's top executives are under siege, despite no legal errors by the BBC of any kind.

WHITNEY

We are production counsel for this definitive biopic of Whitney Houston, directed by Oscar-winner Kevin MacDonald and produced by double-Oscar winner Simon Chinn.

MURDER MOUNTAIN

We're counsel for this acclaimed and popular documentary series.

Web of Lies

We are production counsel for this compelling Discovery series that reveals stories of deception and homicide triggered by online interactions.

FEDERER: 12 FINAL DAYS

We are counsel to this stirring feature documentary by Oscar-winning director Asif Kapadia, on Amazon Prime.

Ghosn

Mmm

Fifa Uncovered 2

ENDEMOL SHINE GROUP

We are among the outside counsel for Endemol Shine Group, a global production powerhouse. Endemol Shine has 120 companies across all the world’s major markets.

THE TINDER SWINDLER

We were production counsel for this Netflix true crime series.

PRIME MINISTER

SmithDehn's Chris Matson and Mike Cleaver, through our prodco Divergent Pictures, executive-produced PRIME MINISTER, in addition to working on legal and business affairs for this Sundance winner.

LEAVING NEVERLAND

We are counsel for this explosive two-part film about Michael Jackson, by Dan Reed for HBO Documentary Films.

ALI G: WHO IZ I?

We are compliance and claims counsel as Sacha Baron Cohen returns to the big screen (and to Amazon Prime) as his most iconic and controversial character, ALI G.

Gotr

FORMULA 1: DRIVE TO SURVIVE

We're counsel for this Netflix documentary series.

Da Ali G Show

Production and litigation counsel to Sacha Baron Cohen's multiple-Emmy-nominated, path-breaking television series, "Da Ali G Show."

THREE IDENTICAL STRANGERS

We are production counsel to this most successful documentary film since Fahrenheit 9/11.

SPACEY UNMASKED

We're counsel to this hard-hitting biographical documentary series on the distributed by Max and Channel Four.

CHIMP CRAZY

We are counsel to CHIMP CRAZY, the most watched HBO documentary series of the last four years.

SOPHIE: A MURDER IN WEST CORK

We are counsel for this controversial and compelling Netflix documentary series by our Academy Award winning client, Lightbox.

DON'T F**CK WITH CATS -- HUNTING AN INTERNET KILLER

We are counsel to this hit Netflix true crime series that follows internet sleuths who attempted to track down Luka Magnotta after he reportedly shared a graphic video killing cats.

Borat

Production and claims counsel for the multi-Oscar nominated comedy, "Borat: Cultural Learnings of America for Make Benefit Glorious Nation of Kazakhstan."

STARZ

Owned by Lionsgate, our client Starz is a leading global media and entertainment distributor/producer, with over 5,000 TV episodes and feature films each year on its several channels.

THE BBC

We have been among the outside counsel for the BBC, where SmithDehn's Philip Wheeler was a senior in-house solicitor for 11 years.

SELMA

Honored to be representing the director and producers of this important, Academy-Award-winning film.

ITV

US counsel to the largest and most popular commercial television network in the United Kingdom.

Channel 4

U.S. counsel to Channel 4, Britain's second largest broadcast network and one of the world's most challenging and creative producers of television programs and films.

UNTOUCHABLE

We are US production counsel for the BBC/Lightbox film, UNTOUCHABLE, about the rise and fall of Harvey Weinstein, premiering at Sundance 2019.

JURY DUTY

We're counsel to this insane and hilarious Amazon FreeVee series.

Project X

THE EDGE OF DEMOCRACY

We are production counsel to this Oscar short-listed film, which the New York Times has ranked among the top ten films of 2019 in all categories.

MOB WAR: PHILADELPHIA VS. THE MAFIA

We are counsel to this number one hit Netflix true crime series, produced by RAW TV.

BECKHAM

We are counsel for this four-part documentary series that reached number one on Netflix in the US and the UK.

KNOCK DOWN THE HOUSE

We are counsel for KNOCK DOWN THE HOUSE, the acclaimed documentary by Rachel Lears, which was purchased by Netflix at Sundance for a record $10 million.

BECOMING LED ZEPPELIN

We are production counsel for this 2025 Netflix documentary from Sony Pictures Classics, which opened at the Venice Film Festival with a 10-minute standing ovation.

LISTEN TO ME MARLON

We are production counsel to this 2015 Sundance-selected, 2016 Oscar-Short-Listed, Marlon Brando biopic released by Universal Studios and Showtime.

TINA

We're counsel for this definitive HBO biopic of Tina Turner, produced by our Academy Award winning client, Lightbox.

BORAT SUBSEQUENT MOVIEFILM

We are production and claims counsel to Borat Subsequent Moviefilm: Delivery of Prodigious Bribe to American Regime for Make Benefit Once Glorious Nation of Kazakhstan

Media Rights Capital

Among counsel to MRC, the industry’s largest independent film, TV and digital studio.

BUZZFEED

We are outside counsel to BuzzFeed.

Break Point 2

NOW YOU CAN SEE EVERYTHING

We have been production and compliance counsel for this A24 documentary by Nathan Fielder and Lance Oppenheim about Theranos founder Elizabeth Holmes.

WHO IS AMERICA?

We are production and claims counsel for Showtime, Sacha Baron Cohen, and their hardhitting, controversial new series, WHO IS AMERICA?, a reincarnation of DA ALI G SHOW in the Trump era.

MONSTERS OF GOD

We are counsel for this major new HBO series from our clients A24 and the creators of TIGER KING and CHIMP CRAZY.

LAST CHANCE U

We're counsel for this award-winning, very popular Netflix series that goes behind the scenes at the top junior college football programs in the US.

THE FINAL YEAR

An insiders' account of President Barack Obama's foreign policy team during their final year, as they set out to define their legacy, promote diplomacy - and react to the rise of Donald Trump.

CITIZENFOUR

We're among the counsel for this Oscar-winning (Best Feature Documentary) about Edward Snowden and national security in post 9/11 America.

ORIGIN

As counsel to The Ford Foundation, we handled negotiations and drafting for the funding of this film by Ava DuVernay, which is inspired by the life and work of Pulitzer Prize winner Isabel Wilkerson.

AMAZON STUDIOS

We are among the litigation defense counsel for Amazon Studios

SEARCHING FOR SUGAR MAN

Production counsel for the late Malik Bendjelloul's sensational, Oscar-winning "Searching for Sugar Man," released by Sony Pictures Classics.

AMERICAN ANIMALS

We were production counsel for this "wildly entertaining" (Variety) scripted feature film that captivated the 2018 Sundance Film Festival.

UNITED SHADES OF AMERICA

We are production counsel for this Primetime Emmy-Award-wining hit CNN series that follows comedian and political provocateur W. Kamau Bell as he explores communities and challenges across America.

A24

We are honored to be legal and business affairs counsel to A24, winner of dozens of Oscars, and the producers behind EVERYTHING EVERYWHERE ALL AT ONCE, MOONLIGHT, LADY BIRD, THE WHALE, and much more.

TRAINWRECK: THE ASTROWORLD TRAGEDY

We're counsel for this Number 1 hit on Netflix, produced by Passion Pictures, about the 2021 Astroworld concert tragedy.

STUTZ

We're counsel for Jonah Hill's remarkable documentary feature about his therapist and how the therapy transformed him.

FREMANTLE MEDIA

We are among the outside counsel to one of the world's largest and most successful creators, producers and distributors of outstanding entertainment brands.

Trainwreck: The Cult Of American Apparel

We are counsel for this fascinating Netflix documentary, produced by Raw TV.

Our Great National Parks

We were counsel for Netflix on this documentary series narrated by President Obama and produced by his production company, Higher Ground Productions.

The Imposter

Production counsel for "The Imposter," an astonishingly true story about a French man who fools everyone into believing he is a missing Texas boy, including the boy's family.

WELCOME TO WREXHAM

We are counsel to this five-time Emmy Award Winning hit television series starring Ryan Reynolds.

KNOCK DOWN THE HOUSE

We are counsel for KNOCK DOWN THE HOUSE, the acclaimed documentary by Rachel Lears, which was purchased by Netflix at Sundance for a record $10 million.

Sins Of Our Mother

TIGER KING

We are outside counsel for the directors and producers of the most popular documentary series in history.

PHILIP GLASS

One of our partners, Russell Smith, has provided legal advice and related services for Philip Glass, the world's most successful living music composer.

THE LONGEST WAR

We are counsel to this definitive Showtime Documentary by the creators of HOMELAND and director Greg Barker, which unpacks the human stories and drama behind America's involvement in Afghanistan.

Sony

Among counsel for Sony Pictures and Sony Pictures Television, producers and/or distributors of some of the most successful motion pictures and programs in the world.

Poop Cruise

CHEER

We are among the production counsel for Season Two of this Triple-Primetime-Emmy-Award-winning series on Netflix.

PLAN B ENTERTAINMENT

Among the counsel for Brad Pitt's production company, acclaimed for SELMA, 12 YEARS A SLAVE, THE BIG SHORT, THE DEPARTED, and other important films.

BRANDY HELLVILLE

We're counsel to this hugely popular Max series produced by Lightbox.

Bruno

Production and litigation counsel to Sacha Baron Cohen's award-winning film "Bruno."

Sprint 2

OCTOBER FILMS

We are US and UK counsel to October Films, one of the world's most respected and longest established factual television production companies. They have won over 100 international awards.

PASSION PICTURES

We are US and UK counsel to this multiple Oscar winning film and television company behind Searching for Sugar Man, The Imposter, and Project Nim, to name a few.

Surviving Black Hawk Down

The Ford Foundation

Trainwreck Woodstock 99

Dirty Wars

We served as production counsel for this award-winning, widely acclaimed investigative documentary about U.S. covert operations across the globe.

BAFTA

Handling contract drafting and negotiations for the British Academy of Film and Television Arts

American Nightmare 2

ALL THREE MEDIA AMERICA

We're among the US and UK counsel for All3Media America, the LA-based, multi studio production hub for one of the world's leading creators of high-quality content.

NAVALNY

We're handling business affairs and production counsel work on this hard-hitting CNN/HBO documentary by Fishbowl Films.

Paramount Pictures

We are among the outside counsel for Paramount Pictures.

Virunga

We are production counsel for this Oscar-Nominated 2014 documentary about the fight to save Virunga National Park, the last refuge of moutain gorillas.

All That Breathes

Fear Thy Neighbor

Production counsel to this Investigation Discovery series about what happens when a homeowner unwittingly takes up residence next to psycho or when evil minds decide to lay down roots right next door.

THE MOST HATED MAN ON THE INTERNET

We were production counsel for this legally difficult, hugely popular Netflix series by Raw TV.

Storm Area 51

ALI G: WHO IZ I?

Ali G iz back! We are production and claims counsel for this upcoming wide theatrical release from Sacha Baron Cohen and Amazon MGM Studios.

Raw TV

US production counsel for Raw TV, a multi-award winning production company with a reputation for gripping narrative, visual innovation and journalistic vigour.

Pi Moms

Ogttp

The Princess

1971: THE YEAR THAT MUSIC CHANGED EVERYTHING

Honored to be production counsel for this Apple+ series from the Oscar award-winning team who created the acclaimed documentary, AMY

Balloon Boy

Mayor

TWENTY-FIRST CENTURY FOX

We have been among the outside counsel to Twenty-First Century Fox.

FRANCE TÉLÉVISIONS DISTRIBUTION

We are among the US counsel for FRANCE TÉLÉVISIONS DISTRIBUTION, affiliated with the largest television broadcaster in Europe, and the public service arm of the Government of the French Republic.

THE SIX BILLION DOLLAR MAN

Winner of the L’Oeil d’or prize at Cannes and the Golden Globe Award for Documentary, this film reveals the real story behind WikiLeaks - a tense investigation into truth, power, and press freedom.

LIGHTBOX ENTERTAINMENT

We are US and UK counsel for this LA-and-London based production company founded by multiple Oscar and Emmy Award winning Simon Chinn and Jonathan Chinn, and funded by Channel 4.

UNTOUCHABLE: THE INSIDE STORY OF THE HARVEY WEINSTEIN SCANDAL

We are counsel for the Hulu Documentary, UNTOUCHABLE: THE INSIDE STORY OF THE HARVEY WEINSTEIN SCANDAL

Vogue 2

HBO

Our attorneys have been among the production and claims counsel to Home Box Office, Inc.

Make Or Break

NATIONAL BIRD

We are honored to be production counsel for this scathing, "bird's eye" documentary, directed by Sonia Kennebeck and exec produced by Wim Wenders and Errol Morris, about the US military drone program.

FRANCE TÉLÉVISIONS

We are among the US counsel for FRANCE TÉLÉVISIONS, the largest television broadcaster in Europe, and the public service arm of the Government of the French Republic.

FAIR USE STILL HAS TEETH -- SMITHDEHN WINS TIGER KING CASE FOR NETFLIX, AS COURT CITES WARHOL DECISION IN GRANTING DISMISSAL

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Despite some gloom and doom about the future of fair use after the Supreme Court’s decision in Andy Warhol Foundation for the Visual Arts Inc. v. Goldsmith last May, it seems that for documentary film makers at least, fair use is in roaring good health.

Back in March 2020, Molly Cramer of Somerset Pennsylvania designed a series of tattoos to drum up interest in her tattoo studio and to make up for lost income during Covid. She started selling online gift certificates to buyers, who could then vote on a which one of her designs she would eventually tattoo on her husband's leg. Unsurprisingly, given the popularity of Tiger King, her tattoo of "Joe Exotic" garnered the most votes.

When the opening sequence of season two included 2.2 seconds of a still of Cramer’s Tiger King tattoo, she sued Netflix and the producers for copyright infringement. SmithDehn was chosen as lead defense counsel for the defendants.

Cramer originally demanded ten million dollars. Following Netflix’s refusal to entertain this demand, she revised her ask to $50,000, which was still many times what a normal license fee would cost. In response, the defendants dug in. We had informed Ms. Cramer's counsel that our clients saw “no reason why any payment should be made” and added that if Ms. Cramer decided to pursue the matter through the courts, we intended to “move for dismissal or summary judgment at the earliest date possible and seek attorney’s fees and costs from Ms. Cramer.” We then moved to dismiss on the pleadings.

While the Cramer case was ongoing, the US Supreme Court rendered its decision in Warhol, finding that the Warhol Foundation had infringed on photographer Lynn Goldsmith's copyright by licensing a silkscreen print-based on Goldsmith’s photograph of Prince to Vanity Fair. It seemed to some like an anti-fair use wave was in the ascendancy. Cramer's counsel told us that because of Warhol, we were likely to lose.

Based in part on the Warhol decision, Cramer argued that Netflix couldn't claim that their use was transformative, because their decision to feature the tattoo had the same commercial purpose as her design, namely, to capitalize on the popularity of Joe Exotic.

The defendants, however, submitted their own analysis of the Warhol decision and essentially pointed out that a documentary series and a tattoo have two fundamentally different purposes. If consumers want a tattoo, they have a qualified individual punch hundreds of tiny ink-filled holes in their body. If they watch a documentary, they are probably assuming they won't have a permanent body marking by the end of the show. Equally, no-one wanting one of Cramer’s tattoos and browsing her catalogue of body art would ever sensibly decide that instead of choosing a tattoo from her images, they will instead watch a 60-minute documentary episode about exotic animal mistreatment and the bizarre people associated with this trade, just because they might see one of Cramer’s works appear in the bottom section of an eight-way split screen for 2.2 seconds. There is simply no commercial competition between the two uses. This divergence allowed the transformative nature of the use to rule.

Netflix made the decision to file a motion to dismiss on the grounds of failure to state a claim, even though most fair use victories are granted only after discovery. We requested that the Court take judicial notice of the episode featuring the tattoo. As the plaintiff already had included all her facts and arguments related to the tattoo, the Court then had all the information it needed to rule on the motion. On September 18, U.S. District Judge Stephanie L. Haines found that the plaintiff had failed to demonstrate a claim and accordingly dismissed Cramer’s complaint with prejudice. Judge Haines stated that the Warhol decision supported the conclusion that Netflix's use of the tattoo image was transformative, saying the defendants used the image of the tattoo "for a fundamentally different purpose than plaintiff originally intended."

"Plaintiff admittedly created her tattoo for the purpose of driving income to her business; Defendants' use of the image of the tattoo for 3 seconds as part of the 8-way split screen montage was for the purpose of showing the public reaction to Joe Exotic after season one of Tiger King." The Court continued: "Defendants' use of the image of the tattoo is independent from plaintiff's original purpose, and defendants' use neither supersedes the object of the tattoo nor serves as a substitute."

"The image of the tattoo appears after a minute-plus-long narrative that takes the viewer back in time to the world's plunge into the pandemic, and the subsequent cultural popularity of defendants' season one of the Tiger King series," said the District Court. “Plaintiff and Defendant have wholly unrelated products and marketing channels when compared to the use at issue in Warhol. Defendants transformative use of the tattoo in no way usurps the market for the original.”

This decision echoes the comments of Justice Gorsuch in the Warhol case. In his concurring opinion, he stated that the Supreme Court’s decision related only to the very fact specific situation involving the use of an image in direct competition with the original, and he said that if the case instead had been about Warhol’s use of the image in a "for-profit book commenting on twentieth century art," fair use could apply. The decision in Cramer v. Netflix bolsters this line of fair use analysis. It clarifies that the degree of commercial competition between the original and the new work needs to be much more than a passing concern with revenue to unseat a solid transformativeness argument.

The case is Molly Cramer v. Netflix Inc. et al., case number 3:22-cv-00131, in the U.S. District Court for the Western District of Pennsylvania.