You may recall that episode four of the series detailed Joe Exotic’s use of logos and photographs owned by Carole Baskin and her company, Big Cat Rescue. Ultimately, Carole Baskin and Big Cat Rescue prevailed in a trio of intellectual property lawsuits, which contributed to Joe Exotic’s “financial downfall.”
But how did Joe Exotic’s use of a logo and photographs result in liability of over $1 million? The documentary did not delve into much detail concerning the lawsuits and viewers have been asking questions. Accordingly, we took a stab at answering your “Tiger King” IP-related questions.
What exactly was Exotic liable for?
Three separate lawsuits were filed by Carole Baskin and Big Cat Rescue against Joe Exotic and his company Big Cat Rescue Entertainment (BCR Entertainment). One lawsuit involved trademark claims alleging infringement of the Big Cat Rescue logo; another lawsuit involved copyright claims alleging infringement of a photo with three bunnies (as depicted in the show); and yet another involved copyright claims alleging infringement of several other photos. In each lawsuit, the court found Exotic/BCR Entertainment liable for the alleged claims. Consequently, the court ordered Exotic/BCR Entertainment to pay Big Cat Rescue $953,000 in the trademark lawsuit, $50,000 in the copyright lawsuit involving the bunnies photo, and $25,000 in the other copyright lawsuit. (Because the copyright lawsuit that involves other photos was not discussed on the show and involved similar claims, this blog does not discuss that suit.)
What happened in the trademark lawsuit?
The trademark lawsuit centered around Joe Exotic’s alleged use of the Big Cat Rescue logo on a BCR Entertainment business card. The logo and business card can be found on pages four and six of the complaint in the trademark suit.
Joe Exotic created a company called Big Cat Rescue Entertainment (BCR Entertainment) to sound like Carole Baskin’s company Big Cat Rescue. Baskin alleged that BCR Entertainment created its business card to cause confusion between the two companies.
To establish its claim for trademark infringement, Baskin’s Big Cat Rescue argued the BCR Entertainment name was confusingly similar to her Big Cat Rescue name by showing that the BCR Entertainment business card imitated the Big Cat Rescue logo’s stylized text, copied the snow leopard image from the Big Cat Rescue website, and displayed a Florida phone number in the bottom right corner to trick consumers into believing BCR Entertainment was actually Baskin’s Big Cat Rescue.
The court agreed that BCR Entertainment’s business card constituted trademark infringement because it caused consumer confusion between the two companies. Accordingly, the judge ordered BCR Entertainment/Joe Exotic to pay $953,000 to Baskin’s Big Cat Rescue and issued an injunction to prevent further use of the infringing logo.
What happened in the $50,000 copyright lawsuit?
Big Cat Rescue posted a photograph on its website, which depicted three Big Cat Rescue employees holding dead rabbits (“Photograph”). Despite not having Big Cat Rescue’s permission to use the Photograph, Exotic/BCR Entertainment proceeded to display an exact copy of the Photograph on at least 21 different webpages, including uses in Facebook posts and YouTube videos. Essentially, Joe Exotic used the Photograph to accuse Big Cat Rescue and Carole Baskin of animal cruelty. The Photograph at issue can be found on page nine of the complaint and in episode four of the Netflix show.
Baskin’s Big Cat Rescue sued Exotic/BCR Entertainment for copyright infringement for using the Photograph without permission. The court held Exotic/BCR Entertainment liable for copyright infringement because they copied and displayed an identical copy of the Photograph and had no defense. As a result, Exotic/BCR Entertainment was ordered to pay Big Cat Rescue $50,000 and the court issued an injunction to prevent Exotic/BCR Entertainment from further unauthorized use of the infringing Photograph. As discussed in more detail below, the court also held Exotic liable for making false statements in the course of the infringement proceedings.
Why was Exotic’s use of the Big Cat Rescue logo considered trademark infringement and Exotic’s use of a Big Cat Rescue Photograph considered copyright infringement?
Trademark law primarily protects brands and logos from being confused with other brands and logos. Exotic’s use of the Big Cat Rescue logo was trademark infringement because it caused consumer confusion between Baskin’s Big Cat Rescue and Exotic’s Big Cat Rescue Entertainment.
Copyright law primarily protects creative works, such as photographs, from being copied or otherwise used by others without authorization. Exotic’s use of the Big Cat Rescue Photograph on various websites, including YouTube and Facebook, was copyright infringement because the uses violated Big Cat Rescue’s exclusive rights to display and copy the Photograph.
Could Joe Exotic have avoided the copyright infringement lawsuits?
Joe Exotic may have been able to avoid the two copyright infringement lawsuits and not been liable to Big Cat Rescue at all. Big Cat Rescue had sent a notice under the Digital Millennium Copyright Act (“DMCA”) requesting the Photographs and videos containing the alleged infringing Photographs be taken down from the respective websites.
But instead of taking down the alleged infringing material, Exotic made the deliberate choice to challenge Big Cat Rescue’s claims by filing a counternotice contesting the infringement claims. After the counternotice was filed, under the law, Big Cat Rescue had 10 days to file a lawsuit in federal court, otherwise Exotic would be permitted to repost the photos.
Had Exotic not filed the counternotice, it is possible that Big Cat Rescue would have simply been content with the photos (and videos containing the photos) being taken down and it may not have sued Exotic. It should also be pointed out that, not only did the court hold that Exotic was liable for copyright infringement, it also held that he lied in the counternotice that he filed.
If Big Cat Rescue did not take the Photograph, how was it the copyright owner?
Usually, the person who takes a photograph is the author and therefore also the original copyright owner. Here, the bunnies Photograph was taken by Julie Hannon (who did not appear in the show), so Hannon was the original copyright owner of the Photograph, not Big Cat Rescue or Carole Baskin. However, Hannon later transferred of all her rights to Big Cat Rescue. At the time the infringement took place and when the lawsuit was brought, Big Cat Rescue was the copyright owner of the Photograph and thus was able to legally bring the case against Exotic.
Did Big Cat Rescue need to file and receive a copyright registration for the Photograph to be protected under the law?
Big Cat Rescue did not need to register the Photograph with the U.S. Copyright Office for it to be protected by copyright. Copyright protection exists from the moment a person fixes an original expression in a tangible medium (such as a poem on a piece of paper, a song on a recording, or Photograph on a memory card or film). Thus, the Photograph was protected from the moment it was shot by Julie Hannon.
Nevertheless, for Big Cat Rescue to bring a copyright infringement lawsuit in federal court, the Photograph did need to be registered beforehand. In other words, copyright registration is a prerequisite to bringing an infringement lawsuit. For more information on copyright registration, please visit our Copyright Registration FAQ page.
If Joe Exotic used the Photo before it was registered, shouldn’t he be able to continue using the photo after registration?
Even before the Photograph was registered with the U.S. Copyright Office, Joe Exotic did not have permission to use it, and therefore was liable for copyright infringement both before and after the registration. Whether or not the Photograph was registered did not change the fact that Exotic was liable for his use both prior to and after registration. However, the timing of the registration could affect a few other things that relate to the amount Exotic could be liable for and when Big Cat Rescue could bring the case.
According to records at the Copyright Office, the Photograph was registered with the Office on August 25, 2011. Since the effective date of a registration is the date on which the fee, copy of the copyrighted work, and completed and signed application are correctly submitted to the Office, the August 25 date is the date that it received these three things. The complaint by Big Cat Rescue, which initiates the lawsuit, was filed on September 2, 2011. In the compliant, Big Cat Rescue acknowledged that infringements had already occurred. This is significant because in order to obtain what is called statutory damages, the copyrighted work must have been registered either within three months after the work was first published or before the infringement. It appears that neither of these happened. The copyright registration lists the date of first publication as April 25, 2010, which is 16 months before the work was registered — well beyond the three-month window needed to be eligible for statutory damages. And because the infringement was taking place before the work was registered, it would appear that Big Cat Rescue should not have been eligible for statutory damages. Nevertheless, the court, in paragraph four of its judgment, which was issued in February 2013, clearly awarded Big Cat Rescue statutory damages, stating:
Final judgment is entered against Defendants BIG CAT RESCUE ENTERTAINMENT GROUP, INC.; G.W. EXOTIC MEMORIAL ANIMAL FOUNDATION; and JOE SCHREIBVOGEL as to Counts I and II of the Complaint, jointly and severally for statutory damages of $50,000.00 Û_
At the end of the day, this distinction may not amount to much since, although Big Cat Rescue may not have been eligible for statutory damages, it still could have received actual damages.
One last note to point out is that in the 2019 case Fourth Estate v. Wall-Street.com, the Supreme Court held that a copyright infringement case cannot be filed in federal court until the Copyright Office has issued a registration certificate. Under the Supreme Court’s ruling, it would not be enough to merely file the registration materials. We do not know the date the Office issued the certificate but it is safe to assume that since the registration was filed on August 25 and the complaint was filed only 8 days later, unless Big Cat Rescue requested an expedited examination when it submitted its registration application, the case would have been filed before a registration certificate issued. At the time the case was filed, that was totally legal. But if the case were to be filed today, Big Cat Rescue probably would have had to wait before filing the case, or at least requested an expedited examination from the Office.
Hopefully, after reading this blog, your questions about “Tiger King” intellectual property battles have been answered. But if you have additional questions, please send them to firstname.lastname@example.org, as we may do a follow up post that answers as many questions as possible. And if you are interested in learning about copyright law more generally, more information is available on the Copyright Alliance website.