In 2020, Netflix released the seven-part documentary series Tiger King, which became a major hit during the early stages of the pandemic. The series focused on the exploits of “Joe Exotic,” the flamboyant owner of a private zoo in Oklahoma. Netflix included clips from eight videos filmed by Timothy Sepi, a cameraman who once worked for the zoo. After the documentary was released, Sepi registered the videos for copyright protection. He then sued Netflix in federal court for copyright infringement.
The trial court granted summary judgment to Netflix, finding that it would be impossible for Sepi to prevail under the applicable law. Sepi appealed to the U.S. Circuit Court of Appeals for the Tenth Circuit. The appellate court revived his copyright infringement claim regarding one of the eight videos.
For the first seven videos, the Tenth Circuit left the trial court’s decision in place. Sepi filmed these videos during his tenure as a zoo employee. The lower court concluded that this made the videos “works for hire” under copyright law, so the cameraman did not own the copyrights. Sepi challenged this ruling by making an argument that he had not made in the trial court, which is generally not allowed. The Tenth Circuit thus rejected this part of the appeal.
Sepi filmed the eighth video after his employment at the zoo ended. For this video, the trial court based its ruling on fair use. This doctrine creates an exception to liability for copyright infringement. Deciding whether the exception applies involves considering four factors specified by statute. These are the purpose and character of the use (including whether the use is “transformative”), the nature of the copyrighted work, the amount and substantiality of the portion used in relation to the work as a whole, and the effect of the use on the potential market for or value of the work.
The trial court found that all four factors weighed in favor of Netflix, so its use of the video did not infringe on the copyright. The Tenth Circuit disagreed. While it concluded that the second and third factors favored Netflix, it found that the first factor favored Sepi. Relying on a U.S. Supreme Court decision last year, the Tenth Circuit explained that the trial court used the wrong standard in assessing whether Netflix’s use was “transformative.” Moreover, it ruled that Netflix had failed to meet its burden of proof regarding the fourth factor, so the trial court should not have found that this factor weighed in its favor. The Tenth Circuit sent the case back to the trial court for further proceedings.
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