JURIST Guest Columnist Brian L. Frye, the Spears-Gilbert Associate Professor of Law, University of Kentucky College of Law, discusses the litigation depicted in Netflix's Tiger King documentary and the misuse of IP law that occurred there...
For better or worse, the paradigmatic television show of the coronavirus pandemic is Netflix’s documentary miniseries Tiger King, an excruciatingly intimate reflection on a feud between two tiger-fanciers. On the one side is Carole Baskin, the rather sanctimonious leader of a big cat sanctuary in Florida. And on the other is Joe Exotic, the “colorful” operator of a glorified circus and petting zoo based in Oklahoma.
Not to spoil the surprise, but in 2018, Exotic was arrested and charged in federal court with 2 counts of murder-for-hire and 17 counts of animal abuse. He was eventually convicted on all counts and sentenced to 22 years in federal prison. He is currently incarcerated at the Federal Medical Center Fort Worth. Exotic has filed several actions against the federal government, which are unlikely to succeed, and is seeking a pardon from President Trump.
How did Exotic come to such an ignominious end? Well, the proximate cause was a trio of intellectual property infringement actions that Baskin filed against Exotic and his organizations. When the court rejected Exotic’s counterclaims, he agreed to a consent judgment of about $1 million. And when he failed to pay, probably because he didn’t have the cash, he was essentially forced out of his zoo. Nursing a deep grudge, he made frequent threats against Baskin, and eventually offered to pay a hitman to kill her.
What was the basis for the intellectual property actions? Primarily, Baskin claimed Exotic had infringed the trademark rights of her sanctuary. But she also alleged several copyright infringement claims. As Mike Masnick of Techdirt has observed, while Baskin had a viable trademark claim, her copyright claims were pretty dubious. But in any event, none of her claims were ever decided on the merits, because Exotic decided to settle.
I find Exotic’s decision quite curious, especially given the highly unfavorable terms of the settlement. One gets the impression that he never intended to pay, but discovered to his dismay that federal court orders are hard to avoid. Or maybe he just gave up. In any case, the story of the litigation is interesting, because it illustrates how people can repurpose intellectual property rights to serve their own goals.
Carole Baskin is the president and chief executive office of Big Cat Rescue Corporation, a charitable organization that operates a sanctuary for big cats and advocates for legislation to prohibit the private ownership of big cats. The sanctuary is in Tampa, Florida, and houses about 50 lions, tigers, bobcats, cougars, and other species of big cats. Baskin founded Big Cat Rescue in 1992, incorporated it as a Florida nonprofit corporation in 1995, and obtained recognition as a charitable organization from the IRS in 1996.
In 2005, Big Cat Rescue registered the following design mark for federal trademark protection.
Among other things, the trademark registration explicitly disclaimed the word mark “BIG CAT RESCUE.” In other words, it claimed the logo as depicted, but not the name “big cat rescue.”
Joe Exotic (born Joseph Allen Schreibvogel, now Maldonado-Passage) was the director of the G.W. Exotic Animal Memorial Foundation, an animal park in Wynnewood, Oklahoma that houses about 700 animals of 50 different species. Exotic founded the park in 1999, and originally named it the Garold Wayne Exotic Animal Memorial Park, as a tribute to his deceased brother. He incorporated the G.W. Exotic Animal Memorial Foundation in 1999 as an Oklahoma nonprofit corporation, but didn’t apply for federal recognition as a charitable organization.
The park focused on tigers, and Exotic became known as the “Tiger King.” Among other things, it offered live shows and the opportunity to pet baby animals, especially baby tigers. Baskin and Big Cat Rescue were quite critical of Exotic and his park, accusing him of mistreating animals and discouraging people from attending his shows. Exotic was incensed by the criticism and regularly lashed out at Baskin on social media and his YouTube show. Among other things he used photos and videos taken by Baskin and her employees in order to cast them in a bad light, including images of them killing rabbits and feeding them to tigers.
But in 2010, Exotic escalated the dispute by forming Big Cat Rescue Entertainment Group Inc., an Oklahoma nonprofit corporation that he used to advertise and present live shows. Here is a representative image.
Among other things, Exotic used a Florida phone number for Big Cat Rescue Entertainment, presumably because many of his customers knew Big Cat Rescue was located in Florida.
On January 31, 2011, Big Cat Rescue filed a trademark infringement action against Big Cat Rescue Entertainment, G.W., and Exotic, among others, alleging infringement of both their registered design mark and their unregistered word mark “Big Cat Rescue.” Under the Lanham Act, federal trademark law protects both registered and unregistered marks, albeit in slightly different ways. Accordingly, even though Big Cat Rescue hadn’t registered the word mark, it could still sue for infringement based on its use of the mark.
Essentially, trademark law provides that it is infringing to use a distinctive mark in a way that will confuse consumers about the source of a product or service and thereby harm the commercial interests of the owner of the mark. In other words, the Big Cat Rescue Entertainment mark would be infringing if it made consumers think it was advertising Big Cat Rescue.
In my opinion, Big Cat Rescue’s claim for infringement of its registered design mark was weak, at best. The only registered mark was Big Cat Rescue’s logo, and the respective logos are not at all similar. They use very different images, and don’t even use the same font.
Big Cat Rescue’s claim for infringement of its unregistered word mark was much stronger, but only if the word mark was protected in the first place. A trademark can be protected only if it is distinctive, and “BIG CAT RESCUE” has a borderline case for protection, at best. A descriptive mark is protectable only if it actually communicates information to consumers about the source of a product or service, and a generic mark is not protected at all. In other words, “BIG CAT RESCUE” isn’t protectable unless it tells consumers not only what Big Cat Rescue does, but also who they are. And it isn’t protectable at all if it is merely a generic term for an animal sanctuary focused on big cats.
The “BIG CAT RESCUE” word mark is weak. After all, Big Cat Rescue explicitly disclaimed it when registering its design mark, presumably because it realized that registration was unlikely. Indeed, when Big Cat Rescue filed a trademark registration application for the word mark “BIG CAT RESCUE” in 2013, the trademark examiner initially rejected it as “merely descriptive,” observing “both the individual components and the composite result are descriptive of applicant’s goods and/or services and do not create a unique, incongruous, or non-descriptive meaning in relation to the goods and/or services.” While the Trademark Office eventually granted the application in 2014, after Big Cat Rescue submitted voluminous additional evidence in support, I am not convinced it made the right decision, at least in part because the mark is arguably not even descriptive, but merely generic.
After all, why did Big Cat Rescue choose that mark? Obviously, as the examiner observed, because it is the broadest possible way of describing the work of an animal sanctuary devoted to rescuing big cats. Of course, businesses find such expansive marks quite attractive. Not only are they effective at communicating information to consumers, but also they enable the suppression of competition. After all, there is nothing better than a mark that prevents your competitor from using the most effective description of the good or service they also provide.
But the purpose of trademark law is to encourage fair competition, not to prevent it. That is why we prohibit the registration and enforcement of generic marks. If competitors need to be able to use a term in order to fairly compete, that term can’t and shouldn’t be protectable as a trademark.
Sure, Exotic intentionally used the “BIG CAT RESCUE” mark in order to both troll Baskin and confuse consumers. But maybe that’s irrelevant, if “BIG CAT RESCUE” shouldn’t be a protectable mark in the first place. What if another animal sanctuary focused on big cats wanted to use the term “big cat rescue” to describe its purpose, for legitimate and non-confusing reasons? Should Big Cat Rescue be able to stop them, merely because it has dominated the market sector? Or should it have chosen a more distinctive mark in the first place, if it wanted to be able to claim exclusivity?
In any case, Big Cat Rescue also filed two copyright infringement actions, alleging that Exotic had used Baskin’s copyrighted photos and videos, without her permission. While those claims were superficially plausible, they were actually quite weak, for both formal and substantive reasons. For one thing, Baskin wasn’t actually the author of the photos and videos, but rather purchased the copyright from the original authors. Not a problem! Copyrights can be sold. But you can’t sue for copyright infringement until a work is registered with the Copyright Office, and Baskin purchased and registered the copyrights after they were infringed. Still not a problem! But she also claimed statutory damages for infringement, rather than actual economic damages, and statutory damages are only available when a work is registered when it is infringed. That is a problem, because statutory damages can be cripplingly large – up to $150,000 per infringement! – precisely because economic damages are so hard to prove. Without statutory damages, Baskin ran the risk of winning the infringement action and getting nothing in exchange for her troubles.
But the more fundamental problem with Big Cat Rescue’s copyright infringement claims was Exotic’s strong fair use defense. The fair use doctrine provides that using a copyright image for the purpose of commentary or criticism is not copyright infringement. One of the primary purposes of the fair use doctrine is to ensure that copyright owners don’t abuse copyright by using it to silence their critics. In other words, fair use is a kind of copyright “escape valve” to protect free speech.
While Exotic’s use of the photos and videos of Baskin and her employees was crass, misleading, and mean-spirited, it was also core free speech. After all, he used them precisely in order to criticize Baskin and Big Cat Rescue. Indeed, he used them in order to respond to allegations Baskin made about him. That is precisely the kind of speech the fair use doctrine was created in order to protect. And more to the point, it is precisely the kind of speech that copyright is supposed to ignore. After all, copyright is all about ensuring authors can benefit from the economic value of the works they create. Baskin wasn’t interested in the economic value of the photos and videos she purchased. She was interested in forcing Exotic to shut up, and in harming him. Understandably! But that isn’t and shouldn’t be a legitimate or enforcable copyright claim.
Anyway, Exotic responded to Big Cat Rescue’s complaints with a smorgasbord of weak counterclaims, including defamation and tortious interference with his business. But Exotic also pleaded defenses, including that the “BIG CAT RESCUE” mark was generic or merely descriptive and copyright fair use. After considerable litigation and recrimination, the court predictably and correctly granted Big Cat Rescue’s motion for summary judgment on Exotic’s counterclaims.
But the court also rejected Exotic’s defenses. There, I think it was wrong, or at least that it failed to fully evaluate the claims and responses. After all, the burden was on Big Cat Rescue to show that it owned a valid trademark in the term “BIG CAT RESCUE,” not on Exotic to show that it didn’t. While Big Cat Rescue made a prima facie case for copyright infringement, it didn’t show it was entitled to statutory damages. And the court simply ignored Exotic’s fair use defense, holding that it was a question of fact for the jury. That’s just wrong. Courts often decide clear fair use cases on a motion to dismiss or summary judgment. And it doesn’t get much clearer than this.
Regardless, Exotic was done. Soon after the court rejected his counterclaims, he settled. In other words, the court never actually ruled on the validity of Big Cat Rescue’s claimed word mark or the viability of its copyright infringement claims. Exotic just gave up and agreed to pay.
I find that troubling. Not because Exotic was in the right or because Baskin was in the wrong, but because that’s not the purpose of trademark or copyright. Understandably, Baskin used the intellectual property tools at her disposal to go after Exotic. And boy was she ever successful, even if she never actually collected on most of the judgment. But is that a victory, or an indictment of how we expect people to defend themselves against intellectual property infringement claims?
Notably, the settlement was curiously one-sided. Even assuming Baskin was right and would have won at trial, it’s unlikely she would have gotten much more than an injunction prohibiting Exotic from using the mark “BIG CAT RESCUE.” While trademark plaintiffs can get damages, they have to prove them. And it’s hard to see how Baskin would have proven meaningful trademark-related damages, let alone anything approaching $1 million Exotic agreed to pay.
Why did Exotic settle? It’s hard to say. Tiger King suggests that he was hoping to just wriggle out of ever paying anything. After all, G.W. eventually filed for bankruptcy and sold its assets to Jeff Lowe, who reopened the park as the Greater Wynnewood Animal Park. Presto change-o! But maybe Exotic just bit off more than he could chew. Maybe he was tired of the litigation and the money Baskin forced him to spend on it. Maybe he was skeptical of his attorneys, who made some curious litigation decisions along the way. Maybe his attorneys were tired of him. Who knows.
In any case, is any of that any way to do intellectual property infringement litigation? I don’t think so. We should want and expect an answer on the merits, not mere gamesmanship. And maybe, just maybe, courts could do a little more to de-escalate interpersonal conflicts, rather than effectively fanning the flames. This should never have been an intellectual property dispute in the first place. It had nothing to do with intellectual property, and everything to do with ideology and personal animosity.
Brian L. Frye is the Spears-Gilbert Associate Professor of Law, University of Kentucky College of Law. He also a host of the Ipse Dixit Podcast.
Suggested citation: Brian L. Frye, The King of Tragicomedy, JURIST – Academic Commentary, May 9, 2020, https://www.jurist.org/commentary/2020/05/brian-frye-tiger-king/
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