Whyte Monkee Productions, LLC v. Netflix, Inc.

Following panel rehearing, Tenth Circuit affirms district court’s grant of summary judgment in favor of Netflix and Royal Goode Productions on all claims regarding use of plaintiffs’ videos in hit docuseries Tiger King, holding that defendants’ use of 66-second clip from funeral video was “significantly transformative” and constituted fair use.

Plaintiff Timothy Sepi worked at the Gerald Wayne Interactive Zoological Park in Wynnewood, Oklahoma, founded by Joseph Maldonado-Passage, also known as Joe Exotic. Hired in March 2015, he split his time among photography, filming and editing for the Joe Exotic TV web series and filming videos for Joe Exotic’s political endeavors and music career. Sepi was paid $150 per week and permitted to live on park property. A week after Sepi started, a fire destroyed the park’s studio and camera equipment, but within a couple of months production resumed with new facilities and equipment. After the Joe Exotic TV web series returned to streaming in May 2015, each episode was preceded by a disclaimer stating that the footage was owned by Whyte Monkee Productions, an Oklahoma LLC established on May 5, 2015, whose Articles of Organization listed Joe Exotic’s email address, the park’s street address, and “Tim Sepi” as signatory, though Sepi conceded on appeal that he was unaware of the entity at the time of its formation. Sepi resigned from the park in August 2016.

In March 2020, Netflix released Tiger King, a seven-part documentary series produced by Royal Goode Productions that incorporated clips from eight videos Sepi had filmed at the park—seven he shot while employed there and an eighth video, a 24-minute video of the funeral of Travis Maldonado, Joe Exotic’s husband, that Sepi filmed after his employment with the park ended.

Sepi and Whyte Monkee Productions later sued Netflix and Royal Goode for copyright infringement. The district court granted summary judgment for defendants, holding that the first seven videos were works made for hire and thus not owned by plaintiffs and that defendants’ use of the funeral video was fair use. (Read our summary of the district court decision here.) On appeal, the Tenth Circuit affirmed as to the seven work-for-hire videos but reversed on fair use, relying on the Supreme Court’s decision in Andy Warhol Foundation for the Visual Arts, Inc. v. Goldsmith, and remanded for further fact-finding on the fourth fair use factor. (Read our summary of the circuit court decision here.)

Following that decision, Netflix filed a petition for panel rehearing and rehearing en banc, and the panel vacated its opinion and granted panel rehearing, directing supplemental briefing on several questions concerning documentary fair use and the impact of Warhol. Several amici curiae—including the International Documentary Association, Film Independent, Women in Film, the University Film and Video Association, and a group of 34 copyright and media law professors—filed briefs in support of Netflix.

In a precedential opinion authored by Chief Judge Jerome Holmes, the panel affirmed the district court’s judgment in full.

As to the first seven videos, Sepi raised a new theory on appeal: that his scope of employment as a tour videographer did not extend to cinematography or film editing conducted on his own time outside of tours. On that basis, Sepi argued that his creation of the videos was outside the scope of his employment such that they could not constitute works made for hire. The Tenth Circuit held that Sepi waived this theory because it was factually incompatible with the theory plaintiffs had presented in the district court—that Sepi performed videography work for Whyte Monkee Productions rather than the park. The court thus declined to address the merits and affirmed the district court’s judgment that the seven videos were works made for hire.

As to the funeral video, the court held that the use of a 66-second clip from it in Tiger King constituted fair use, finding that all four fair use factors favored defendants and, in particular, that defendants’ documentary-style use of the clip was “significantly transformative.”

The Tenth Circuit analyzed the first fair use factor—the purpose and character of the use—at length. At the outset, the court provided a comprehensive exposition of the transformativeness inquiry under Warhol, explaining that the first factor asks “whether and to what extent the use at issue has a purpose or character different from the original [work]” and that a use is “transformative” when the degree of difference goes “beyond that required to qualify as a derivative.” The court emphasized that the fundamental inquiry is whether the secondary use risks “superseding” or “supplanting” the original.

The court discussed two senses of “justification” as articulated in Warhol. In the “broad sense,” a secondary use with a distinct, transformative purpose is justified because it advances the goals of copyright without substituting for the original. In the “narrower sense,” a use may be justified where copying is reasonably necessary to achieve the user’s new purpose—as with parody, which inherently must target the original. Critically, the court clarified that “targeting” the original work with commentary or criticism about it “is not always required” for a finding of fair use: When a secondary use is sufficiently transformative and justified in the broad sense insofar as it serves a distinct purpose from the original, an independent justification in the narrower sense (such as targeting the original for parody or commentary) is not typically necessary.

The court also observed that documentary-style works “frequently incorporate snippets of copyrighted materials” and that courts have often found the first factor to favor fair use in such cases—not because documentaries enjoy a categorical presumption, but because they frequently reflect comment, criticism, news reporting and education—all purposes that appear within the preamble to the fair use statute and are thus reflective of classic fair use cases. To illustrate the boundaries of transformativeness in documentaries, the court compared the Fourth Circuit’s 2013 decision in Bouchat v. Baltimore Ravens Limited Partnership (holding that the use of an old NFL team logo in historical documentary videos was transformative because it helped tell the story of the team’s history) to the Ninth Circuit’s 2003 decision in Elvis Presley Enterprises, Inc. v. Passport Video (holding that some archival clips of Elvis performances were legitimately used as historical reference points while others were improperly used for their original entertainment value).

Applying these principles, the court concluded that defendants’ use of 66 seconds of the funeral video “fits comfortably within the mold” of documentary cases where fair use has been found. The funeral video was created “for remembrance” of Maldonado. Sepi placed a camera on a tripod and left it running, with occasional zooming and panning. The video was livestreamed on the Joe Exotic TV YouTube page and remained posted there. In contrast, defendants used the excerpt in Tiger King for the distinct purpose of illustrating Joe Exotic’s “purported megalomania” and “showmanship,” interspersing the eulogy footage with critical commentary from Maldonado’s mother, which at times was played directly over visuals of his remarks at the funeral.

The court found this was “significantly transformative,” noting that the insubstantial amount copied (66 seconds of a 24-minute video) belied any risk of superseding or supplanting the original. The court rejected plaintiffs’ argument that defendants were required to comment on or “target” Sepi’s video (such as Sepi’s creative decisions or intended meaning) for the use to be fair, holding that under the circumstances—where the secondary use was so different in purpose from the original—targeting was not necessary, and the use was justified in a “broad sense.”

As to the issue of commerciality, the court acknowledged that Tiger King was undoubtedly a commercial success—reportedly watched by over 34 million viewers in its first 10 days—but held that the proper focus was on the commercial exploitation of the copyrighted material itself, not the commercial nature of the secondary work as a whole. Given that the funeral clip constituted less than 3% of the Tiger King episode in which it appeared and less than 1% of the entire series, the court concluded “there is no indication that defendants gained materially from the commercial exploitation of the copyrighted material itself,” and thus commerciality did not materially tilt the balance.

On the second fair use factor, the nature of the copyrighted work, the court held the funeral video was factual in nature, containing only footage of actual events that Sepi did not direct or arrange, and that Sepi’s creative choices were “extremely limited.” The court rejected plaintiffs’ argument that the video was “artistic and expressive” simply because Joe Exotic spoke with flair. As to publication status, the court rejected plaintiffs’ argument that the video was “unpublished” under the Copyright Act’s statutory definition of “publication.” Holding that the second factor inquiry focuses on whether the copyright holder has exercised control over the work’s “first public appearance”—not the statutory definition of “publication”—the court found that Sepi’s decision to livestream and post the video on YouTube constituted a first public appearance, and defendants’ subsequent use did not impede Sepi’s ability to control its first public appearance. The court thus found that the second factor also weighed in favor of fair use.

Looking at the third factor, the amount and substantiality of the work used, the court found that defendants used a quantitatively insubstantial amount and that the portions used were not necessarily the most qualitatively important parts of the video. The court also held that defendants used no more than was reasonably necessary for their transformative purpose of commenting on Joe Exotic’s megalomania and showmanship. This factor also weighed in favor of fair use.

The court held the fourth factor, the effect on the potential market for or value of the original work, weighed in defendants’ favor for several reasons. First, plaintiffs did not challenge the district court’s conclusion that Tiger King was not a substitute for the original funeral video. Second, plaintiffs failed to identify any protectible derivative market that could be harmed, offering only speculation that “it’s hard to imagine that there was not a market to make derivative uses” of the footage. The court held that while defendants bear the evidentiary burden on fair use, they need not disprove effects on hypothetical derivative markets that plaintiffs have not identified. Third, defendants’ significantly transformative use attenuated any likelihood of market harm: It “strains belief that anyone would watch Tiger King or the segment at issue as a substitute” for the original funeral video, the court observed. Fourth, extrinsic evidence confirmed the lack of market harm: Sepi admitted he had never licensed, sold or commercially exploited any of his work, and his deposition testimony indicated the video was made for personal remembrance. The court also declined to draw an inference of market harm from the fact that defendants had paid to license other footage for the series, noting that these payments may have been made to avoid litigation and that drawing a reflexive inference from “the theoretical market for licensing the very use at bar” would constitute a circular argument and should be rejected.

The court found the weighing of the factors together “straightforward” because all four “point with force in the same direction: fair use.” The court noted that even if market harm could be inferred from the licensing payments (such that the fourth factor weighed slightly against fair use), it would be insufficient to overcome the other three factors, which weighed strongly in defendants’ favor.

Summary prepared by Frank D’Angelo and Jeff Prystowsky.