An appeals court has reversed part of a court judgment that had found in favour of Netflix in a copyright infringement case involving a videographer that had worked on its wildly popular Tiger King series.

In reversing the court judgment, a three-judge panel at the US Court of Appeals for the Tenth Circuit cited the Supreme Court guidance in the landmark Andy Warhol case relating to the “fair use” defence in copyright infringement cases; a final settlement was recently reached between the Warhol estate and photographer Lynn Goldsmith.

The plaintiff Timothy Sepi and his company Whyte Monkey Productions sued Netflix and Royal Goode Productions for copyright infringement of short clips from eight videos he had filmed while he was working at the Gerald Wayne Interactive Zoological Park (the park). The park was owned by Joseph Maldonado-Passage (aka the Tiger King).

These clips were used in the Netflix release Tiger King: Mayhem and Madness, released in 2020. Sepi contended that he owned the copyright in the videos and that the defendants had used clips without permission.

In April 2022, the district court granted summary judgment to Netflix. It held that seven of the clips were made for hire under the US Copyright Act and thus Sepi didn’t own the copyright.

Secondly, the court found that defendants’ use of the eighth video was “fair use” that did not infringe upon Sepi’s copyright – the eighth video was shot after Sepi terminated his employment relationship with the park.

The case was heard before appeals court judges Jerome Holmes, Harris Hartz and Joel Carson who upheld the district court’s judgment relating to the first seven clips, but with respect to the eighth video concluded that the district court made a mistake in finding that Netflix was entitled to summary judgment on its fair use defence.

US copyright law contains a fair use doctrine that promotes freedom of expression by permitting the unlicensed use of copyright protected works in certain circumstances. The law calls for the consideration of four factors when evaluating fair use: purpose and character of the use; nature of the copyrighted work; amount and substantiality of the portion used and effect on the potential market for or value of the work.

Chief Judge Holmes, who delivered the judgment, said that in light of the Supreme Court’s recent guidance in Warhol “the district court erroneously concluded that the first factor, which concerns the purpose and character of the use, favours Netflix”.

The first factor considered whether the use of the eighth clip was “transformative”. The court agreed with Sepi that Netflix streaming use is “as commercial as it gets and is not transformative because the use makes no commentary upon the work itself”.

Holmes said use of the eighth video clip did not “comment” on the original composition, but rather targeted a character in the composition.

He added that the Andy Warhol case has deemed such a use to not be “sufficiently transformative”. Indeed, in Warhol, Andy Warhol himself targeted a character – the artist, Prince – but the court determined that his work was not sufficiently transformative in part because Warhol did not target the original work, Lynn Goldsmith’s photograph of Prince.

The court also sided with Sepi on the fourth factor – effect on the potential market for or value of the work. The streaming giant “failed to provide any affidavits or other evidence demonstrating the absence of a market impact”.

It has now remanded to the court for further proceedings consistent with this opinion.

Sepi was represented by Digital Justice Foundation’s Gregory Keenan and Andrew Grimm. The foundation focuses on advocating for individual rights in digital spaces.

Netflix was represented by Mitchell Silberberg & Knupp’s Robert Rotstein and Emily Evitt alongside MJMLAW’s  Mack Morgan.

Joe Exotic has been subject to numerous lawsuits, most notably the trademark and copyright lawsuits filed by fellow Tiger King subject Carole Baskin, which resulted in a bankruptcy-causing $1m damages award and the transfer of Exotic’s Greater Wynnewood Exotic Animal Park to Baskin.

Exotic is currently serving a 21-year prison sentence after being found guilty of a murder-for-hire plot against Baskin.