(CN) — Attorneys representing the streaming video provider Netflix and an independent filmmaker went before a 10th Circuit panel for a second time Wednesday to argue whether a brief clip from the blockbuster documentary “Tiger King” required a licensing agreement.
The rehearing, scheduled after the three-judge panel vacated its earlier ruling in favor of the plaintiff, was the result of a landmark ruling of the U.S. Supreme Court in 2023 over artist Andy Warhol’s unauthorized reproduction of a Prince photograph. There, a bipartisan majority led by Justice Sonia Sotomayor determined reproductions of copyrighted material may be covered under fair use doctrine, but only if they are “transformative” from the original.
Warhol’s piece, which simply changed the appearance of the photographer’s original image but not its meaning, message or intent, was determined to infringe the photographer’s copyright.
In what was painted as a similar legal picture, Timothy Sepi filmed most of the clips seen in the “Tiger King” documentary as an employee of Joe Exotic’s Gerald Wayne Interactive Zoological Park in Oklahoma. But after his resignation from the park, Sepi returned to independently record video of a memorial service for Travis Maldonado, Exotic’s husband who died by suicide.
According to a subsequent lawsuit, the footage from the memorial service was incorporated into “Tiger King” without Sepi’s knowledge or consent. In April 2022, U.S. District Court Judge Timothy D. Degiusti determined the video’s inclusion amounted to fair use that did not infringe Sepi’s copyright.
In March 2024, the 10th Circuit cited the Warhol ruling to determine Netflix failed to make a transformative change to Sepi’s footage, concluding the clip was not protected by fair use. In a motion for rehearing, Netflix argued the ruling would “inevitably have a chilling effect on documentarians and other creators who make use of short excerpts of other works to create something entirely new for a different purpose.” The court vacated the ruling in May.
On Wednesday, Chief U.S. Circuit Judge Jerome A. Holmes, a George W. Bush appointee, sought to clarify Netflix’s purpose and intent by including the clip. He also pressed the streaming giant on whether its inclusion was transformative and justified.
Robert Rotstein, representing Netflix and Royal Goode Productions LLC, said Sepi’s footage was created for the purpose of commemorating Maldonado’s death. On the contrary, the producers of “Tiger King,” incorporated the clip “as raw material to create new expression,” Rotstein said. Specifically, it helped further illuminate Exotic’s callous attitude, which was a main feature of the documentary.
“The justification is to further the narrative of ‘Tiger King’, his life, his dark world, his culture of violence that spirals down,” Rotstein explained. “The funeral clip portrays Joe Exotic’s indifference to the death of Travis Maldonado.”
Whyte Monkee Productions LLC and Timothy Sepi are represented by Andrew Grimm and Gregory Keenan of the Digital Justice Foundation.
In their brief, Sepi and the production company argued Netflix “never meaningfully” articulated a transformation because one doesn’t exist. They also emphasized Sepi’s videos were an unpublished, creative, personal endeavor and his market for the video was “eviscerated” by Netflix’s use. Unfairness was further demonstrated by a lack of attribution to the creator and the lack of an offer for a licensing fee.
At the dais Wednesday, Keenan argued the Warhol ruling requires that each specific use of another person’s copyrighted work must be justified. He further said it would not be “profoundly disruptive” for Netflix to pay a customary fee to all licensees.
U.S. Circuit Judge Joel M. Carson, a Donald Trump appointee, seized on Keenan’s arguments to suggest the appellant was only pursuing the case because of Netflix’s large share of the streaming market.
“You’re really focusing totally on, ‘hey, we’ve got a really rich user, and they ought to pay us a little bit’” Carson said. “That seems to be the thrust of your argument, because everything else that goes into determining fair use seems irrelevant in your approach, because that’s what you always come back to.”
U.S. Circuit Judge Harris L. Hartz, also a George W. Bush appointee, noted he had “no interest” in Exotic as a documentary subject, but suggested it’s typical of documentarians to use small video clips or other “snippets” to illuminate certain aspects of personalities.
“Isn’t that a sufficient ‘further purpose’ or ‘different character’ to conclude this is fair use?” Hartz asked, using phrases defined by Sotomayor in the Warhol case.
Keenan warned that such an interpretation would allow producers to “eviscerate” licenses for clips.
“I think the justification and the balancing that has to be done between the transformation or the justification and the commerciality has to be evaluated at each stage and sensitive to each use,” he argued. “So we would just stress that it’s a matter of the specific level of justification and the specific focus on the particular work and then balancing it with commerciality at that stage, which isn’t just going after deep pockets or rich defendants, it’s actually looking at what the exploitation of the work is.”