A Brooklyn-based artist is suing HBO for using his painting of Slenderman—a spooky internet meme that went on to inspire real-life violence—in a documentary on the fictional creature without his permission. The network claims its treatment of the work qualifies as fair use. But a judge is not so sure. This week, Judge Margo Brodie rejected HBO’s motion to dismiss the case, clearing the way for it to proceed to trial.

In a complaint filed in Brooklyn Federal Court last June, artist Joe Coleman alleges that the cable network inappropriately used his 2014 painting, No One Can Enter the Lord’s House Except as a Child (Slenderman), in the true-crime documentary “Beware the Slenderman,” which tells the story of two 12-year-old Wisconsin girls, Anissa Weier and Morgan Geyser, who attempted to murder a friend as a sacrifice to the fictional, internet-born villain in 2014. The film was premiered on HBO in 2017.

Coleman says his painting, which depicts the Slenderman wrapping his elongated fingers around the two children, is shown for over 25 seconds in one of the last frames of the documentary. But, he claims, the producers never asked for his permission. Instead, they created the false impression that his work was available for anyone to reuse online for free. And worse, he claims in the suit, “the documentary goes on to misrepresent [Coleman’s] valuable painting as an example of ‘Slenderman fan art,’” essentially reducing its value. The artist is seeking unspecified damages for copyright infringement and the removal of the film from the marketplace.  

Coleman, who is represented by Andrew Edlin Gallery in New York, is known for his dense, graphic paintings inspired by comics. His work has been the subject of solo shows at the Palais de Tokyo in Paris and the KW Institute for Contemporary Art in Berlin. 

HBO sought to have the case dismissed last November, claiming that its use was “transformative” enough to be considered fair use because the filmmakers showed the painting on a computer screen.

“Just as [Coleman] painted the Work to comment on the Slenderman legend by using pieces of art by other people, so too does the Documentary use Plaintiff’s work as displayed online comment on the tragic inclusion of the Weier and Geyser in the Slenderman meme,” HBO’s motion read.

Judge Brodie was not buying it. On August 6, she threw out the network’s motion for dismissal, allowing the case to proceed. “[HBO is] not entitled to a finding that their use of the [painting] is transformative solely because they display the Work in an Internet browser,” she stated in her ruling. She added that she needs further information to determine exactly why and how the filmmakers used Coleman’s painting before making a final determination on whether or not it qualifies as infringement. 

Coleman and representatives from HBO are due back in court next month. Neither the artist nor HBO responded to artnet News’s request for comment by publication time.