09 May NETFLIX SUCCESSFUL IN TIGER KING COPYRIGHT DISPUTE

Netflix has been successful in defending a copyright case relating to its hit series Tiger King. Timothy Sepi and Whyte Monkee Productions sued Netflix and the show’s producer Royal Goode Productions, over the use of eight videos filmed by Sepi. Seven of the videos were filmed whilst Sepi was working at Joe Exotic’s zoological park. The eighth video, which documented the funeral of Joe Exotic’s husband, Travis Maldonado, was filmed by Sepi shortly after he left his role at the park.

Sepi claimed that he and/or Whyte Monkee Productions owned the copyright in the videos, and their use in the series without permission infringed his rights. Netflix applied for summary judgment on the basis that seven of the videos were not owned by Sepi and the eighth was lacking in originality such that it did not qualify for copyright protection. It was also argued that its use of all the videos was fair use and so not an infringement of copyright.

An Oklahoma judge found that the seven videos filmed whilst Sepi was employed at the park were created during the course of and within the scope of his employment. As such they were works for hire, and the copyright is owned by his employer, not Sepi.

As to the eighth video, the funeral video, the argument that it lacked sufficient originality to be protected by copyright was rejected by the court, as the placement of camera, and decisions on focus, angle and what to film at least arguably met the minimum requirements for copyright protection. However, the judge found that Netflix’s use of the video was fair use, noting the following: the use of the video in Tiger King served a different purpose to that intended in the original video; it had been used as the raw material to create new information and aesthetics and was therefore transformative; the clips were a tiny portion of the series and not of themselves exploited for commercial gain; the original video was factual and had previously been published and only a tiny portion of the video featured in the show; and the Netflix use had not usurped any primary market for the work. The commercial nature of Tiger King did not undermine the judge’s conclusion.

This brings to a conclusion this copyright case which has been ongoing since 2020.

In the UK, copyright legislation provides that, where a literary, dramatic, musical or artistic work is made by an employee during the course of their employment, the employer will be first owner of any copyright in the work (unless an agreement has been made to the contrary). Where a person works as a contractor or a freelancer under a ‘contract for services’, however, the individual (rather than the company engaging their services) retains copyright in any works created by the contractor as part of the engagement.  Accordingly, if companies wish to ensure that they own copyright in the products of their contractors’ services – which they usually will – it is important to ensure that contractor agreements contain a clause expressly assigning copyright in the products of the services to the company engaging the contractor.