Sumatran tiger profile on a black background

Sepi v. Netflix et al. was a case in the Western District of Oklahoma that brought the much reviled/loved reality show star Joe Exotic into the national spotlight. The suit against the “Tiger King” was brought by a videographer challenging his work-made-for-hire agreement with Exotic. (Really, the judges refer to him by that name).  

Sepi earned $150 per week, along with free room and board. He was a full-time employee living on the grounds of Joe Exotic’s wild animal “sanctuary.” After the bankruptcy of Exotic, and Netflix taking interest in making a mini-series about him, Sepi tried to carve out an exception to his employment situation by arguing that the videos that Netflix used were not part of his job description — so he, therefore, owned those videos. To argue why “his” videos were not works-made-for-hire, he relied on his job description: it only mentioned taking videos of the regular tours of the facility. But Sepi also took videos of Exotic doing stunts and talking, talking, talking.

The district court considered a total of eight videos. The court found that the plaintiff’s claim of seven of the videos being exempt from a work-made-for-hire arrangement didn’t make much sense. However, the eighth video included footage that Sepi had taken after he was employed. The court considered whether it was fair use for Netflix to use in a its mini-series about the fallen Tiger King the video of Exotic’s speaking at his husband’s funeral (and Exotic waxing inappropriately prosaic about himself) .

To determine whether fair use applies, the Copyright Act directs a court to weigh four factors. The district court agreed that the first factor, “the purpose of the allegedly infringing use,” weighed in favor of the plaintiff videographer. Netflix plainly used the video for commercial purposes. As the plaintiff argued, using the video in a miniseries that garnered 34 million viewers in its first week was “about as commercial as it gets.” 

The second factor, referred to as the “nature of the work” factor, addresses whether the work is fictional or factual. Factual works are almost always found to be subject to fair use. In this case, the plaintiff attempted to claim the funeral video was fictional, and therefore subject to the fair use protections of a parody. The court disagreed, explaining that it could only be parody if it was commenting on the video itself, not commenting on the fiction-like character of Exotic. The plaintiff also argued that the work was unpublished, but the court said no, it was made available on YouTube.

The third factor addresses how much of the original work was used. The judge took care to look at the overall video, and how much of it was used, to determine this factor. The court noted that out of a 24-minute video, Netflix only used one minute. So, the court weighed that factor in favor of Netflix. 

But the plaintiff need not despair: it’s a four-part test. For the fourth factor, the court considers the impact on the relevant market. Andy Warhol Foundation for the Visual Arts, Inc. v. Goldsmith made it clear that, as part of an affirmative defense, the defendant has the burden of proving that the use would not impact the plaintiff’s sales. (It’s the defendant’s burden of proof because fair use is a defense, of course.) In this case, the producers had to demonstrate that the cameraman could sell the work elsewhere, despite their use of the best part. Here, Netflix failed to provide an analysis of the marketplace and demonstrate why the allegedly infringing use did not impact the market for plaintiff’s video.

So, the Tenth Circuit affirmed summary judgment for the defendant that seven of the eight videos were works made for hire (and Netflix had acquired the rights to use them), but reversed the summary judgment as to the eighth, “funeral video,” finding that Netflix had not demonstrated it was entitled to the fair use defense. And so, the case was remanded to determine that issue at trial.

I’m concerned how the court addressed the second factor.  The court found unpersuasive Sepi’s claim that his work was unpublished, even though the Copyright Act defines publication as making a work available for the user to keep. YouTube lacks that important feature of publication: it’s impossible for users to download their own copies from YouTube.

Likewise, I’m not sure whether the court should have found that “only 5%” of the funeral video was used, and therefore weighing the third factor in favor of Netflix. The court didn’t note whether the “heart” or most salient portion of the video had been taken, which certainly would be relevant if this were the infringed work was, say, a song; consider whether taking only a “small part” of a song – say “O-bla-di, O-bla-dah” — meant the work wasn’t infringed … In any event, determining “how much is infringed” strictly in terms of a percentage analysis might encourage an already widespread tendency to release shorter and shorter clips of long videos. Perhaps the videographer lost on the third factor because he failed to substantially edit his work.

Ultimately, the fourth factor kept the case alive. Netflix would have won if it had spent the time and money on an expert witness to show that their use of the video didn’t minimize the marketplace for the plaintiff’s work.  

Not yet a win or a loss. Maybe the parties will settle rather than continue to claw at Joe Exotic.

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