District court holds that videos filmed by videographer for Joe Exotic, which were licensed and used in hit docuseries Tiger King, were works for hire or constituted fair use, granting summary judgment in favor of Netflix on videographer’s copyright infringement claims.
Following the success of Netflix’s 2020 docuseries Tiger King: Murder, Mayhem and Madness, cameraman Timothy Sepi sued the streaming service and Tiger King producer Royal Goode Productions LLC for copyright infringement, alleging that clips from eight videos he filmed were used in the series without his permission. Whyte Monkee Productions LLC, which purportedly produced the videos, was also named as a plaintiff.
Tiger King follows a man known as Joe Exotic, the founder of a big cat and exotic animal park in Oklahoma, and chronicles his rivalry with Carol Baskin, a self-proclaimed animal activist who was ultimately the target in an alleged murder-for-hire plot orchestrated by Joe Exotic. Also located at the animal park was a studio at which an unscripted web series titled Joe Exotic TV was produced. In March 2015, Sepi was hired to work with the producer of Joe Exotic TV as a videographer, ultimately spending his workdays photographing tours of the animal park, filming and editing content for Joe Exotic TV, filming videos for Joe Exotic’s political endeavors and music career, and filming the day-to-day operations of the park.
Defendants moved for summary judgment, arguing that seven of the eight videos at issue were filmed in the scope of Sepi’s employment with Joe Exotic, and were therefore works for hire that Sepi did not own. As to the eighth video, which captured the memorial service for Exotic’s husband and was filmed after Sepi’s employment ended, defendants argued that the video lacked sufficient originality to warrant copyright protection or, in the alternative, that their use of the video constituted fair use. The court granted summary judgment in defendants’ favor.
To succeed on a claim for copyright infringement, a plaintiff must prove ownership of a valid copyright and the unauthorized copying of original elements of the work. While Sepi obtained copyright registrations for the eight videos following the release of Tiger King—three registrations in his name and five in the name of Whyte Monkee Productions—defendants claimed that the videos were works for hire and that Royal Goode Productions had licensed the videos from Exotic and a subsequent owner of the park. The Copyright Act defines a work for hire, which vests the copyright in a work with the employer for whom the work was prepared, as one that is “prepared by an employee within the scope of his or her employment.” As the district court explained, courts have adopted the three-prong test set forth in Section 228 of the Restatement (Second) of Agency to determine when a work is created within the scope of employment: that conduct is within the scope of employment if “(a) it is of the kind he is employed to perform; (b) it occurs substantially within the authorized time and space limits; [and] (c) it is actuated, at least in part, by a purpose to serve the master.” Applying this test, the district court concluded that seven of the eight videos in question were works for hire and therefore not owned by plaintiffs.
The court discussed at length Sepi’s 2016 deposition testimony in a garnishment action filed by Carol Baskin against Joe Exotic to collect a $1 million judgment. The court found that Sepi’s testimony at that deposition differed significantly from his 2021 deposition testimony in the copyright suit, noting the numerous times that Sepi had committed perjury. Sepi testified in 2016 that he was hired to perform videography work at the park and that he would be producing content for Joe Exotic TV in exchange for $150 per week. He also testified that he had not created or controlled, and had no involvement with, Whyte Monkee Productions, the purported owner of the video content. In 2021, however, Sepi testified that he was hired only to provide photography services, that his videography work was separate from that employment, that he had established Whyte Monkee Productions as a vehicle for his video work, and that his 2016 testimony was a lie. Defendants argued that Sepi’s 2021 testimony should be excluded under the sham affidavit doctrine, which provides that an affidavit that conflicts with prior sworn testimony should be disregarded when it is being used to create a sham factual dispute at summary judgment. While recognizing that Sepi was not represented by counsel when he gave his 2016 deposition testimony, the district court ultimately agreed that his 2021 deposition testimony should be stricken given the stark contradictions in his testimony, the lack of any indication that Sepi was confused by the questioning, and his failure to provide adequate explanations for the contradictory testimony.
The district court also determined that the videography work Sepi performed by filming Joe Exotic, including in the videos at issue, was sufficiently related to his photography work for the park that it was “of the kind” of work Sepi was employed to perform. Sepi’s work filming Joe Exotic’s pursuits was incidental to his work as a park photographer in that both promoted the park’s activities, making such videography work “of the kind” of work Sepi was employed to perform. The court also determined that Sepi performed his videography work “substantially within the authorized time and space limits” of his employment, splitting his workday among photography, filming and editing that was largely performed at the animal park using equipment procured for him by the park. Finally, the district court concluded that Sepi’s videography work was actuated, at least in part, by a purpose to serve the animal park, namely by promoting the park and Joe Exotic. Having found that all three elements were satisfied, the district court held that the seven videos filmed while Sepi was employed by the park were works for hire and therefore not owned by plaintiffs.
The video of the funeral ceremony for Joe Exotic’s husband was filmed after Sepi’s employment at the park ended. Defendants argued that the video, a mostly straightforward filming of the funeral ceremony, lacked sufficient originality to warrant copyright protection. The district court disagreed, finding that Sepi’s decisions on placement of the camera and occasional zooming and panning could lead a reasonable juror to conclude that the video meets the low bar of originality required for copyright protection.
Defendants alternatively argued that their use of the eighth video, using a “relatively small portion of the video” interspersed with commentary relating to Tiger King’s broader narrative, constituted fair use under the Copyright Act. Applying the four fair use factors specified in 17 U.S.C. Sec. 107, the district court held that defendants’ use was fair use. The court found that defendants’ use of the funeral ceremony video was transformative because, while Sepi testified that he created the video “[f]or remembrance,” defendants used a “relatively small portion of the video” interspersed with commentary relating to Tiger King’s broader narrative. The court’s finding that the nature of the copyrighted work is more factual than creative weighed in favor of fair use, as did the fact that defendants only used minimal, less important portions of the funeral ceremony video. Lastly, the court determined that defendants’ use of the funeral video in Tiger King would not usurp any market for the video, which was filmed for purposes of remembering the deceased. With all four factors weighing in favor of fair use, the district court held that defendants’ use of the funeral ceremony video was fair use.
Having held that seven of the eight videos at issue in plaintiffs’ lawsuit were works for hire for which plaintiffs could not prove ownership of the copyrights and that the use of the eighth video was fair use, the district court granted defendants’ motion for summary judgment.
Summary prepared by Tal Dickstein and Kyle Petersen