Tiger King: The Trademark and Copyright Infringement Actions at the Center of the Feud Between Joe Exotic and Carole Baskin
04/15/2020Netflix’s “Tiger King” has become one of the streaming service’s most popular series in the last few weeks, documenting the years-long fight between Joe Exotic (né Schreibvogel), the self-proclaimed “Tiger King,” and Carole Baskin, founder and CEO of Big Cat Rescue Corp. (“Big Cat Rescue”). The feud led to three separate intellectual-property lawsuits that bankrupted Exotic and serve as a cautionary tale as to how competitive antics can have severe legal consequences.
Trademark Infringement Action
In January 2011, Big Cat Rescue brought an action against Exotic and two of his corporations, Big Cat Rescue Entertainment Group, Inc., and G.W. Exotic Memorial Animal Foundation (collectively, the “Exotic Defendants”). See Big Cat Rescue Corp. v. Big Cat Rescue Ent. Grp., Inc., Case No. 8:11-cv-209 (MSS)(MAP) (M.D. Fla.). The plaintiff alleged trademark infringement and unfair-competition claims based on the Exotic Defendants’ use of the “misleading and confusing name, Big Cat Rescue Entertainment,” in connection with their “commercial exhibitions across the United States.” The alleged “scheme” to “disparage [Big Cat Rescue] and dilute the goodwill in its Big Cat Rescue mark . . . by causing the public to mistakenly believe that [Big Cat Rescue] was engaged in the despicable exploitation of exotic animals,” included:On the eve of trial in February 2013, after some losses by the Exotic Defendants, including the dismissal of their counterclaims for libel and slander, the parties settled the action, filing a Consent Judgment, stating that the Exotic Defendants “have infringed upon [Big Cat Rescue]’s trademark rights and engaged in false designation of origin and unfair competition,” ordering a permanent injunction enjoining the Exotic Defendants from using the Big Cat Rescue mark or “any other confusingly similar mark for any purpose” or committing any other act that infringes upon Big Cat Rescue’s trademarks, and entering a judgment award of $953,000 in favor of Big Cat Rescue for compensatory damages and attorneys’ fees and costs.
-Adopting “a design depiction of the deceptive and confusingly similar” name “in a style intended to copy” Big Cat Rescue’s federally registered design mark;
-Utilizing a photo of a snow leopard’s eyes “virtually identical to the photograph . . . that is used as the focal point of [Big Cat Rescue]’s website” in 2011; and
-Purchasing a Florida telephone number with the same area code as Big Cat Rescue and printing “Florida Office” on marketing materials “to further cause the public to mistakenly believe that Defendants’ business was the same as or affiliated with” Big Cat Rescue.
Copyright Infringement Actions
In September 2011, while the trademark infringement action was still pending, Big Cat Rescue brought another action against the same Exotic Defendants, alleging copyright infringement, among other claims, for the publication of a photograph of three Big Cat Rescue volunteers holding dead rabbits (the “Photograph”). See Big Cat Rescue Corp. v. Big Cat Rescue Ent. Grp., Inc., Case No. 8:11-cv-2014 (JDW)(TBM) (M.D. Fla.). Big Cat Rescue submitted an application for copyright registration of the Photograph less than one month before filing the action, on August 25, 2011.
The Amended Complaint details the Exotic Defendants’ use of the Photograph in videos posted on YouTube, including with the caption “Tame Bunnies Killed & Bled by Order of Carole Baskin to Make Bloodsicles For Her Cats,” and Big Cat Rescue’s efforts through YouTube to take down the infringing videos.
In January 2013, the Court partially granted Big Cat Rescue’s Motion for Summary Judgment, finding that the Exotic Defendants copied the “constituent parts of the photograph and post[ed] it in videos and on websites twenty-one times.” But the Court could not rule on the exact number of times it was posted by the Exotic Defendants or whether any of those uses constituted “fair use.”
One month later, at the same time as the settlement in the trademark infringement action, the parties filed—and the Court Ordered—a Consent Judgment, stating that the Exotic Defendants “have infringed upon [Big Cat Rescue]’s copyright rights,” ordering a permanent injunction enjoining the Exotic Defendants from reproducing, distributing, using, modifying or publishing the Photograph or any other substantially similar photograph for any purpose, or from representing that they own the Photograph, and ordering statutory damages of $50,000.
On top of that suit, in October 2012, while both of these other actions were pending, Big Cat Rescue filed yet another action against the Exotic Defendants, alleging copyright infringement over several photographs, originally taken by Carole Baskin, that the Exotic Defendants posted on a variety of mediums, including YouTube and Facebook. See Big Cat Rescue Corp. v. Big Cat Rescue Ent. Grp., Inc., Case No. 8:12-cv-2381(JSM)(MAP) (M.D. Fla.). As with the other copyright action, the applications for copyright registration for the photographs by Big Cat Rescue occurred only weeks before the action was filed.
As with the two other actions, in February 2013, the parties settled the matter, entering into a Consent Judgment, stating that the Exotic Defendants “have infringed upon [Big Cat Rescue]’s copyright rights,” ordering a permanent injunction enjoining the Exotic Defendants from reproducing, distributing, using, modifying or publishing the photographs or any other substantially similar photographs for any purpose, or from representing that they own the Photograph, and ordering statutory damages of $25,000.
Shortly after all the Consent Judgments were entered, Big Cat Rescue sought to begin efforts to collect these judgments, filing them in the United States District Court for the Western District of Oklahoma, where the Exotic Defendants reside. In connection with its collection actions, Big Cat Rescue served numerous subpoenas seeking the amount and location of the Exotic Defendants’ assets, filed numerous motions seeking the turnover of the Exotic Defendants’ property—notably including a Great Dane Trailer and a Freightliner tractor owned by Exotic—and moved for and questioned Exotic himself at multiple debtor’s exams. But despite all of the time and money spent in attempting to collect from the Exotic Defendants, as of January 2020, the vast majority of the funds owed under the Consent Judgments remain outstanding.
Underlying IP Issues in Context
Although there was no substantive court ruling in any of Big Cat Rescue’s cases because of the parties’ settlements, the Exotic Defendants had an uphill battle based on the facts of the trademark infringement action. Unlike some of the other trademark cases we have covered over the years, the Exotic Defendants were not using the “Big Cat Rescue Entertainment” name as a parody or to emphasize the differences between the two organizations. Instead, the use appeared far more likely to confuse the public, as the name, logo, and Florida telephone number make clear, as do Exotic’s alleged statements on social media that he created the entertainment company to “ruin” Big Cat Rescue “on google . . . and it is working.” And where “proof of a likelihood of confusion” is a necessary factor to succeed on a plaintiff’s trademark claims, Big Cat Rescue had a strong case.
In the copyright disputes, it was, at the very least, debatable that a fair use defense should apply (for context, see our analysis of other copyright cases dealing with fair use). Because courts are often reluctant to find fair use as a matter of law early in the case, Joe Exotic faced the reality that he would be unlikely to fully prevail on a fair use defense without costly discovery and even a trial. Finally, it’s worth noting that here, as with many other IP disputes, even a plaintiff with a legal judgment in hand may face difficulties when it comes to actually collecting a money judgment from a defendant. This case is a stark example of how a personal and business feud can implicate intellectual-property rights, to the financial detriment of everyone involved.
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