The Satanic Temple filed a complaint against Netflix in federal court in the Southern District of New York on November 8, 2018 for copyright infringement, trademark dilution, and injury to business reputation. I initially drafted this post prior to the commencement of the suit, but many of the issues I discuss below appear in the complaint. As such, this blog only addresses the copyright claim.
On October 28, 2018, Lucien Greaves, co-founder and spokesperson of The Satanic Temple (“the Temple”), tweeted the Temple’s intention to take legal action against Netflix for an allegedly infringing statue featured in the new show, The Chilling Adventures of Sabrina. The Temple filed its lawsuit against Netflix and Warner Brothers, the producer of Sabrina, in the Southern District of New York ten days later.
In Sabrina, the title character—a sixteen-year-old girl who is half witch and half mortal—attends a school for young witches and warlocks called the “Academy of Unseen Arts.” The Academy is affiliated with the fictitious Church of Night, a patriarchal entity whose members are compelled to do Satan’s bidding, including performing ritualistic cannibalism and blood rites. A large monument of a humanoid figure with a goat’s head—an iteration of the deity Baphomet—sits at the center of the Academy and appears prominently in several scenes throughout the show’s first season. Greaves was quick to point out the striking similarities between the Sabrina statue and the Temple’s Baphomet.
To lawfully include a copyrighted work in a television show or similar media, producers must either obtain permission from the copyright owner to use the work or pay the copyright owner to license the work. Netflix and Warner Brothers did neither.
The Satanic Temple, (not to be confused with the Church of Satan), was co-founded by Greaves in 2012, and is a nontheistic religious organization that encourages empathy among all people, rejects tyrannical authority, and fosters individual rights to free will and bodily autonomy. The Temple commissioned and unveiled its Baphomet statue in 2015 in response to an installation of a statue honoring the Ten Commandments at the Oklahoma State Capitol.
The Temple holds the copyright to the Baphomet statue and Greaves claims that the Sabrina statue is an obvious unauthorized copy. But does the Temple have a viable copyright infringement claim? Probably. Would its claim hold up to a fair use defense? Not necessarily.
Under the Copyright Act, copyright ownership takes hold upon the fixation of an original work of authorship in any tangible medium of expression. Copyright ownership allows the owner to have the exclusive rights to reproduce, display, sell, and prepare derivative works of the copyrighted work. For example, when an artist sketches out an original design on a piece of paper, she immediately owns the copyright to that design and is the only person who can legally reproduce it, display it, sell it, and create new works based on it. In this case, Greaves commissioned Brooklyn sculptor Mark Porter on a work-for-hire basis to create the Temple’s Baphomet statue. (For reference: when an art buyer commissions work from an artist on a work-for-hire basis, the buyer is the owner of the intellectual property rights for the commissioned work rather than the artist.)
To establish a copyright infringement claim, a copyright owner must show that the infringing party had access to the owner’s work and that there are probative similarities between the works. A certificate of copyright registration is a prerequisite for U.S. plaintiffs to file a copyright infringement suit, and the certificate can serve as prima facia evidence of ownership. Since it already holds the copyright registration, the Temple would need to establish in litigation that (1) Netflix and Warner Brothers had access to the Temple’s Baphomet and (2) that there are probative similarities between the works. It seems likely that the Temple will be able to prove these elements.
The Temple should have no trouble showing that Netflix and Warner Brothers had access to its Baphomet. A copyright owner can show access to a work through evidence that the defendant had a reasonable opportunity to observe the plaintiff’s work. This doesn’t mean that the copyright owner necessarily needs to show that the defendant actually viewed the work. A plaintiff may be able to satisfy this element by pointing to a work’s wide dissemination or fame. Here, the Temple’s Baphomet was indeed widely disseminated—it made national news when the Temple planned to install the work alongside the Ten Commandments monument at the Oklahoma State Capitol in 2015 and is the only well-known, contemporary Baphomet statue. Given the statue’s national renown, a court is likely to find that the Temple satisfies this element.
The Temple may have more difficulty demonstrating “probative similarities” between the two statues but is still likely to fulfill this element. In general, it is really hard to show probative similarities between artistic works. Art is inherently subjective, which makes it difficult to pin down exactly what is a probative similarity. Producing a work in a similar style or using a similar technique doesn’t cut it. To show probative similarities, a plaintiff must show that “the works, when compared as a whole, are adequately similar to establish appropriation.” Probative similarities are similarities that you would not expect to arise if the works had truly been created independently.
Though Sabrina’s Baphomet appears to be a CGI creation rather than a physical statue, the work bears similarities to the Temple’s Baphomet that would be difficult for Netflix and Warner Brothers to swear off as nonprobative. Numerous prior depictions of Baphomet have been based upon occultist Eliphas Levi’s 1856 depiction of the deity. Among other distinctions, the Temple’s 2015 Baphomet features two new, significant diversions from Levi’s representation. First, while Levi’s Baphomet featured voluptuous breasts on a male-presenting humanoid form to represent male-female duality, the Temple’s decidedly does not—the Temple sought to avoid a controversy that could distract from the symbolism intended by the statue, like pluralism and the reconciliation of opposites. Second, the Temple’s Baphomet reincorporates the male-female duality by adding two reverent child figures to the statue, a girl and a boy. These changes to the Eliphas Levi template not only diverged from Levi’s design, but also from the multitude of other artistic representations of Baphomet, making the Temple’s Baphomet unique. Sabrina’s Baphomet is nearly identical to the Temple’s statue, and includes both of these new components that make the Temple’s Baphomet distinct.
Greaves and the Temple seem capable of making a strong argument against Netflix and Warner Brothers, satisfying both elements of a copyright infringement claim, but it’s less clear whether their copyright claim would withstand a fair use affirmative defense. The Copyright Act limits the exclusive rights of copyright holders by allowing for fair use of copyrighted work “for purposes such as criticism, comment, news reporting, teaching . . . scholarship, or research.” This is not an exhaustive list of purposes, and courts examine four factors to determine whether a copied work qualifies as fair use:
- the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
- the nature of the copyrighted work;
- the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
- the effect of the use upon the potential market for or value of the copyrighted work.
The first factor looks to whether the use of a copied work is transformative, meaning that it “adds something new, with a further purpose or different character, altering the first with new expression, meaning, or message.” This factor often weighs most heavily and can be determinative of the success of a fair use defense. Transformative use isn’t absolutely necessary for a finding of fair use, but the more transformative the new work, the less significant the other factors will be.
Netflix and Warner Brothers may be able to show that their use of the Temple’s Baphomet in Sabrina is a transformative use. They might argue, for example, that their recreation of the Temple’s Baphomet critiques satanism and therefore alters the original with new meaning, but that argument seems tenuous at best. Though Sabrina in some ways functions as a critique of patriarchal society and religious ideologies generally, it does not appear to obviously or specifically critique satanism. Bringing the Satanic Temple’s Baphomet into the imagery of the show would be the only connection between the Temple’s satanism and the show’s plot and thematic goals. Rather than commenting on the Temple’s Baphomet or building on the sculpture’s expressive value in any meaningful way, Netflix merely copped the statue design as a set piece.
It’s unclear whether this argument or any other transformative use argument that Netflix may put forth could successfully rebuff the Satanic Temple’s copyright infringement claim. The concept of transformative use is relatively new in American copyright law, and our understanding of what exactly counts as transformative use is still foggy. But now that the Temple has filed its complaint, we may have the opportunity to see first-hand how these issues shake out in court.*
*Dimitra Rallis is an associate editor on the Michigan Technology Law Review.