Whyte Monkee Productions, LLC v. Netflix, Inc.

In case involving use of video clips in hit docuseries Tiger King, Tenth Circuit partially reverses lower court’s grant of summary judgment in favor of Netflix based on Supreme Court’s recent guidance as to first fair use factor in Andy Warhol Foundation for the Visual Arts, Inc. v. Goldsmith and insufficient record evidence as to fourth fair use factor.

Plaintiff Timothy Sepi served as a videographer at the Gerald Wayne Interactive Zoological Park, founded by Joseph Maldonado-Passage (better known as Joe Exotic). In 2020, Netflix released a popular multipart documentary series about Joe Exotic called Tiger King, incorporating eight videos that were shot by Sepi while he was an employee at the park. Sepi and Whyte Monkee Productions—a production company that Sepi once claimed not to be involved with but later claimed to have founded—subsequently sued Netflix and the series’ producer, Royal Goode Productions LLC, for copyright infringement, alleging that plaintiffs owned the copyrights to the videos in question and that defendants had used them in the series without permission. 

Defendants moved for summary judgment, arguing that seven of the videos were produced while Sepi was employed by the park and that the videos were therefore works made for hire and not owned by him. Defendants argued that the use of the eighth video, in which Sepi captured the funeral of Joe Exotic’s late husband, Travis Maldonado, and Exotic’s eulogy at the funeral, constituted fair use. The district court agreed with defendants and granted summary judgment. (Read our summary of the district court decision here.)

On appeal to the Tenth Circuit, plaintiffs argued that the district court erred in finding that the first seven videos were works made for hire. Instead, plaintiffs argued that the scope of Sepi’s employment as a videographer did not “extend to cinematography and video editing conducted on his own time outside of tours” and that Sepi captured the funeral video on his own time, not during any park tours. Reviewing the record below, the Tenth Circuit found that plaintiffs had failed to raise this argument in the district court and had therefore waived the argument on appeal. As this was the only appellate argument raised by plaintiffs regarding the first seven videos, the court affirmed the district court’s grant of summary judgment as to those videos.

As to the eighth video, plaintiffs argued that the U.S. Supreme Court’s recent decision in Andy Warhol Foundation for the Visual Arts, Inc. v. Goldsmith, which was rendered after the lower court’s decision in this case, warranted reversal. The Tenth Circuit considered each of the four fair use factors in turn and ultimately agreed with plaintiffs.

The court held that the first factor, the purpose and character of the use, weighed against fair use in light of Warhol. As it noted, the lower court had relied principally on the Supreme Court’s 1994 decision in Campbell v. Acuff-Rose Music, Inc. in holding that the use of the funeral video was sufficiently “transformative” because it added “something new, with a further purpose or different character, altering the first with new expression, meaning, or message.” However, as the Tenth Circuit noted, in Warhol, the Supreme Court clarified that Campbell cannot be read to mean that the first factor “weighs in favor of any use that adds some new expression, meaning, or message.” Rather, the factor weighs in favor of fair use only where the secondary work contains commentary that has a “critical bearing on the substance or style” of the original work. Absent such commentary, as Warhol held, “the claim to fairness in borrowing from another’s work diminishes accordingly (if it does not vanish), and other factors, like the extent of its commerciality, loom larger.’”

Against that backdrop, the Tenth Circuit held that defendants’ use of the funeral video was not transformative for purposes of the first factor. According to the court, defendants used the video not to comment on Sepi’s work, such as its creative decisions or intended meaning, but rather to comment on Joe Exotic by “providing a historical reference point in Mr. Exotic’s life and commenting on Mr. Exotic’s showmanship.” In that sense, the court held, the use was not transformative, for the same reason that in the Warhol case, Andy Warhol’s use of Lynn Goldsmith’s photograph of the pop icon Prince was not transformative: The “target” of Warhol’s silkscreen was not Goldsmith’s photograph but rather the subject of her photograph, Prince.

Given the lack of “transformativeness,” the court held, the commerciality of the use “looms larger.” As the court opined, the use of the funeral video in a series that “was streamed to millions of paying subscribers of Netflix’s for-profit streaming service” was undoubtedly commercial and further weighed against fair use under the first factor.

As to the second factor, the nature of the copyrighted work, plaintiffs argued that the funeral video was expressive and artistic, but the court rejected this argument, holding that the video was indisputably factual in nature and involved virtually no creative decisions by Sepi, who simply placed a camera on a tripod and set it to record. The court also rejected plaintiffs’ argument that the video had not been distributed to the public, since it had been livestreamed via YouTube and posted to the platform thereafter. As to the third factor, the amount and substantiality of the copyrighted material used, the Tenth Circuit emphasized that defendants used only 66 seconds of a 24-minute video and no more than was necessary to illustrate their intended points regarding Exotic’s showmanship. Both of these factors thus weighed in favor of fair use.
As to the fourth factor—the impact of the secondary work on the market for the original work—while the district court had found that the docuseries would not negatively impact the potential market for Sepi’s funeral video, the Tenth Circuit disagreed. As the court held, the burden of proof to demonstrate the “absence” of market harm supporting a fair use affirmative defense fell on defendants, which, according to the court, did not submit affidavits or other evidence on the question of market harm.

While the court acknowledged that Sepi conceded he never licensed or sold his videos, which the court opined might weigh in defendants’ favor, it held that the lower court had not taken that evidence into account nor evaluated its significance against the backdrop of defendants’ burden to introduce evidence on this factor. On the other hand, the court opined that the fact defendants paid to license other videos for the docuseries, but not the funeral video, may weigh against defendants on this factor. Ultimately, the court determined the existing record did not support a conclusion that the fourth factor weighed in favor of fair use. It held, however, that defendants should be afforded an opportunity to “fill the evidentiary hole” on this factor, and it remanded the case to the district court for further fact-finding, with instructions to weigh the four factors against one another after such fact-finding.

Summary prepared by Frank D’Angelo and Alex Inman