Media Rights Capital

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

BAFTA

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

Trainwreck Woodstock 99

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.

All That Breathes

PARTICIPANT

We are among the outside counsel for Participant, whose projects have won multiple Academy Awards and have been nominated for over 50.

UNTOUCHABLE

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

SELMA

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

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.

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.

CITIZENFOUR

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

Da Ali G Show

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

THE MOST HATED MAN ON THE INTERNET

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

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.

TINA

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

BRANDY HELLVILLE

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

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.

STUTZ

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

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.

TIGER KING

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

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.

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.

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 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.

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

100 FOOT WAVE

We're counsel for this HBO Original Series

THREE IDENTICAL STRANGERS

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

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.

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.

THE HATCHET WIELDING HITCHHIKER

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

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.

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.

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.

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.

SEARCHING FOR SUGAR MAN

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

Gold Rush - Raw Television

Production counsel for all nine seasons of Discovery's popular observational documentary television series, "Gold Rush."

Dirty Wars

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

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.

Sins Of Our Mother

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.

FORMULA 1: DRIVE TO SURVIVE

We're counsel for this Netflix documentary series.

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

JURY DUTY

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

CHEER

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

Unprecedented

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.

ITV

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

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.

CBS CORPORATION

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

Borat

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

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.

AMAZON STUDIOS

We are among the litigation defense counsel for Amazon Studios

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.

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.

THE TINDER SWINDLER

We were production counsel for this Netflix true crime series.

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.

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.

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.

BUZZFEED

We are outside counsel to BuzzFeed.

Bruno

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

Paramount Pictures

We are among the outside counsel for Paramount Pictures.

Web of Lies

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

LEAVING NEVERLAND

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

MURDER MOUNTAIN

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

SOPHIE: A MURDER IN WEST CORK

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

HBO

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

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.

BECKHAM

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

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.

The Princess

AMERICAN ANIMALS

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

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.

NETFLIX

We are outside counsel for Netflix.

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.

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.

TWENTY-FIRST CENTURY FOX

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

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.

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.

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?.

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.

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

Fifa Uncovered 2

NAVALNY

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

The Ford Foundation

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

back to list

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.