The Difference Between Trademarks and Copyrights as Told by Joe Exotic, Carole Baskin and Tiger King

Netflix’s epic docuseries the Tiger King took the world by storm in March of 2020.  The series – likely due to the difficulty in succinctly presenting complicated lawsuits – conflates the issues of copyrights and trademarks, however, so we set about to clear up the errors and confusion.

BACKGROUND  

So first, a bit of background in case you haven’t seen the Tiger King on Netflix, don’t want to watch the entire thing, or it’s been some time since you binged it like the rest of us.  

The Tiger King, aka Joe Exotic, has a big cat farm in Oklahoma, something loosely described as a zoo.  He’s chugging along fine, until he gets into a heated dispute with a lady trying to stop big cat breeding down in Tampa, Florida.  Enter, Carole Baskin.  Carole’s non-profit, called Big Cat Rescue, takes in cats and allows them to live out their days in so-so conditions behind cages.  But her main goal is to make selling of exotic cats in the United States illegal, just like it’s illegal to breed exotic cats.  As told by Carole, the problem with breeding cats is that once they’re grown, they’re no longer a money-maker for the owners, and instead become an expensive albatross to maintain.  This leads many to being euthanized, as we learn in the docuseries. 

Now, the blood between these two is bad, but where it really takes off is when Joe Exotic names his traveling venture “Big Cat Rescue Entertainment.”   Carole Baskin has already trademarked her logo, which includes the words “Big Cat Rescue,” and Joe Exotic’s logo for Big Cat Rescue Entertainment looks mightily similar.  

Enter LAWSUIT NUMBER ONE in federal court, filed in the United States District Court for the Middle District of Florida.  Carole Baskin’s Big Cat Rescue sues Joe Exotic and Big Cat Rescue Entertainment in early 2011 for trademark violation over the logo.  According to public records, Big Cat Rescue was opened in 1995, and they didn’t apply for the trademark on the logo until 2004. 

What Carole Baskin’s Big Cat Rescue didn’t have up through 2011, though, is a trademark on the mark (think, words used together): “Big Cat Rescue.”  Nevertheless, Baskin argues that “Big Cat Rescue” should have common law protection because it’s been used by them for years.  This is a potentially valid argument, as you can successfully get common law protection over a trademark if you can successfully prove the following test courts administer under this cause of action: that you had pervasive, continuous and exclusive use over the mark, and therefore you should own it, otherwise it would confuse the public.    

This is an important distinction, but one we’ll never know how it would have played out.  If the case had gone to trial, Joe Exotic may have lost the trademark action over the logo, but he also may have prevailed on using the name.  You just never know.  But before it’s all said and done, Joe Exotic gives up and agrees to a consent judgment.

Because trademark lawsuits can take some time, though, and also because Baskin, her husband (whom we believe attended the University of Miami School of Law), and their lawyers likely wanted to put more legal pressure on Joe Exotic, Big Cat Rescue Corp. sues Joe Exotic for copyright violation.  

Enter LAWSUITS NUMBER TWO AND THREE in federal court, filed in late 2011 and early 2012.  Copyright violations can be much easier to prove, and it certainly was in this instance.   Baskin and co. had copyrights on certain – and rather innocuous photos – and Joe Exotic posted them online, primarily on Facebook.  This is a prima facie case of copyright infringement.  Joe Exotic admitted in his deposition to posting the pictures.  Never mind the fact that he alleges Carole Baskin wasn’t the original owner of the copyrighted photo – which is interesting because it’s a clever move by Baskin.  In copyright law, it doesn’t matter.  Because Baskin had the copyright, and Joe Exotic posted the photos online, he violated the copyright.  

Copyright actions do carry statutory penalties, because damages are tough to prove.  However, in the case of photos that was not being used in commerce by Big Cat Rescue Corp., the damages were very small, and we see that later in the judgment amounts between the two copyright lawsuits only totaling $75,000.00.  Not a fun amount to pay, but certainly not enough to bankrupt Joe Exotic. 

THE DIFFERENCE BETWEEN COPYRIGHTS AND TRADEMARKS

Let’s discuss the difference between copyrights and trademarks.  While both trademarks and copyrights offer intellectual property protection, they protect different types of assets. Copyright is geared toward literary and artistic works, such as books, videos and pictures. A trademark protects items that help define a company brand, such as its logo. 

A trademark protects “words, names, symbols, sounds or colors that distinguish goods and services from those manufactured or sold by others and to indicate the source of the goods.”  This means that a company can register a trademark for its business name, slogans, logos and other items that essentially brand the product or company. 

A copyright, on the other hand, protects authorship of photos, videos, movies, songs, paintings, or other works of art, both written and expressed.  According to the United States Copyright Office, copyright protects original works created in a fixed form including “literary, dramatic, musical, artistic, and certain other intellectual works.”  As one other definition goes, copyright protection “inures in original works of authorship fixed in any tangible medium of expression.”  While copyright ownership is automatic, in order to secure official copyright registration rights, it requires the filing of a form, paying a fee, and sending a copy of the work to the United States Copyright Office.

LAWSUIT RESOLUTIONS

The docuseries mentions that the court entered summary judgment against Joe Exotic.  And this part is true – Baskin, Big Cat Rescue Corp. and crew secured summary judgment in both copyright lawsuits and partial summary judgment in the trademark lawsuit, all in a matter of 45 days.   Sure, it seems like a big blow to Joe Exotic, but summary judgment wasn’t entered on the merits of the trademark claims over the logo.  He only lost summary judgment on his counterclaims. Netflix makes it seem like he was dead in the water, but he wasn’t.

What likely happened to Joe exotic was he ran out of money and was tired of the fight.  We think this is true because he and his lawyers agreed to what are called consent judgments – where both parties agree to the court entering the judgment against the defendant.  In this case, Joe Exotic agreed to Consent Final Judgments being entered against, two of the judgments dropping on February 11, 2013, and the third on February 14, 2013.  

And how much, you’re wondering?  Well, in the two copyright cases, the amount of damages on the final judgments are a whopping $75,000.00.  

But on the trademark case?  This always was the threat to be the big one, and it was, to the tune of $953,000.00.  Yikes.  Joe Exotic has over a million dollars in judgments against him, and the rest is history, as they say.

WHAT DO YOU THINK  

Would a jury have found the logos to be too similar and a violation of Big Cat Rescue’s trademarks?  Would the common law claims on the name have been enough?  If not, what would real damages have been?  My guess is if Joe could have continued the fight, there would have been an agreement to stop using the name and logo and a much smaller settlement, but again, we’ll never know.  

So, there you have it.  Very effective use of the court system by Carol Baskin and Big Cat Rescue Corp., or, rather, incredible use of their money to enforce their marks and then systematically bankrupt Joe Exotic, and a series of bad decisions by an angry Joe Exotic.  

Trembly Law

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