Plaintiffs Whyte Monkee Productions and Timothy Sepi sued Netflix and Royal Goode Productions for copyright infringement after Netflix used clips of eight videos filmed by Sepi in the popular documentary series Tiger King. Sepi had worked for the Gerald Wayne Interactive Zoological Park, filming tours and content for a web series called Joe Exotic TV. Seven of the videos were filmed during his employment, while the eighth, a twenty-four-minute recording of a funeral, was filmed after he left the job. The district court granted summary judgment to Netflix, ruling that the first seven videos were works made for hire owned by the employer, and that the use of the eighth video was fair use. The plaintiffs appealed, arguing that the seven videos were not works for hire and that the use of the funeral video was not fair use.
The Tenth Circuit addressed two primary issues. First, regarding the seven videos filmed during employment, the court affirmed the lower court's work-for-hire ruling. The plaintiffs attempted to argue on appeal that Sepi's scope of employment was limited to tour videography and did not include the cinematography and editing done on his own time. The court held that this was a new theory not raised in the district court and, because the plaintiffs failed to argue for plain error, they waived the issue. Consequently, the court upheld the district court's finding that these videos were works made for hire. Second, the court analyzed the fair use claim regarding the Funeral Video under the four statutory factors of 17 U.S.C. § 107. The court found that all four factors favored Netflix. For the first factor, purpose and character of the use, the court determined the use was significantly transformative. While the original video was a remembrance of the deceased, Netflix used the clip to comment on the showmanship and megalomania of Joe Exotic, a distinct purpose. The court clarified that targeting the original work is not required for fair use when the use is transformative in a broad sense. The commercial nature of Netflix did not outweigh this transformativeness given the insubstantial amount used. For the second factor, the nature of the copyrighted work, the court found the video to be factual rather than creative, as it was a static recording of a real event with limited creative choices by the author. For the third factor, the amount and substantiality used, the court noted that Netflix used only 66 seconds of a 24-minute video, which was no more than necessary for the transformative purpose. Finally, for the fourth factor, the effect on the market, the court found no evidence of harm to the original or derivative markets. The plaintiffs had never licensed the video, and the transformative nature of the use made it unlikely to serve as a market substitute.
The decision affirms that documentary filmmakers may use short clips of copyrighted footage to comment on subjects or provide context, even if they do not directly target or parody the original work, provided the use is significantly transformative. It reinforces that parties must raise all arguments in the district court to preserve them for appeal. The ruling leaves open the question of whether a work is a work for hire based on the specific scope of employment duties, as that issue was not fully litigated on the merits in this case due to the waiver.
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