Filmmakers are warning that a recent ruling in a copyright suit against Netflix over its “Tiger King” docuseries could restrict the use of video clips in documentaries, and upset a long-held understanding of what constitutes “fair use.”
The 10th Circuit Court of Appeals, based in Denver, ruled in March that the use of a 66-second excerpt from a funeral video was not “transformative” under the Copyright Act. The three-judge panel remanded the case to a lower court to determine if Netflix violated the copyright of Tim Sepi, the videographer who shot the scene.
Netflix has petitioned the court to reconsider its decision, and has been joined by the Motion Picture Association, the International Documentary Association, Film Independent, and a host of media law professors in raising alarms about the potential chilling effect on non-fiction storytelling.
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“It’s a big deal,” said attorney Chris Perez, a co-author of “Clearance & Copyright,” a film industry guide to rights clearance issues. “It disrupts the common practice that documentary filmmakers have been employing for the last couple decades.”
Documentaries often pay to license archival footage. But sometimes the copyright holder cannot be found, or refuses to grant a license, or demands too high a price. In those cases, the filmmakers may invoke the “fair use” exception under the Copyright Act, which allows the use of copyrighted material under certain conditions, especially if the use is “transformative.”
True crime documentaries — which have exploded over the last decade — often rely heavily on old news clips or online video obtained without a license.
In the “Tiger King” case, the filmmakers used a clip of zookeeper Joe Exotic giving an off-color eulogy of his husband while dressed in a clerical collar. The original 24-minute video was livestreamed and posted on Exotic’s YouTube page.
“Tiger King” was released in March 2020, and it became an instant pandemic-era hit.
Sepi, who had worked for Exotic as a videographer, sued Netflix in September 2020 in federal court Oklahoma, alleging that the filmmakers had taken a clip from the funeral, along with seven other clips, without his approval and without any credit.
The district judge threw out the case, finding that the seven other clips were shot while he was working for Exotic, and were therefore considered “work for hire.”
The judge ruled that the funeral clip — shot after Sepi resigned — was “fair use” because the filmmakers had added their own perspective to Sepi’s raw material, thereby transforming it into something new.
The 10th Circuit overturned that portion of the ruling, finding that the filmmakers were not commenting on Sepi’s footage. Instead, they were using Sepi’s footage to comment on Exotic, which the panel found was not sufficiently “transformative” of the original work.
“In other words, the purported commentary did not ‘comment’ on the original composition, but rather targeted a character in the composition,” wrote Judge Jerome Holmes, on behalf of the panel. “Defendants simply wished to use Mr. Sepi’s Funeral Video to convey a new meaning or message — viz., commenting on and criticizing Mr. Exotic.”
In reaching that conclusion, the panel relied on the Supreme Court’s decision in the Andy Warhol case last year. In that case, the court limited the scope of the “fair use” defense, finding that the artist’s rendition of a magazine photo of Prince was not sufficiently transformative.
The Motion Picture Association, which represents the major studios, filed an amicus brief last week supporting Netflix’s request for rehearing, and arguing that the court had misapplied the Warhol case.
“The Panel’s unfounded and erroneous rule jeopardizes the ability of creators to create works that are grounded in or comment upon real-world people, places, and events,” the MPA’s lawyers argued. “There is a rich tradition of such works utilizing discrete portions of prior works as historical reference points or to illustrate underlying events.”
The International Documentary Association submitted its own amicus brief, along with other groups representing independent filmmakers. They argued that the ruling will “create a massive chilling effect on documentary filmmaking.”
“It will require documentarians to find and seek license deals from people who cannot be identified or have no interest in licensing their works,” they argued. “It will create massive transaction costs that will make documentary filmmaking prohibitively expensive. It will grant copyright holders unprecedented control over discussions of history and culture, turning copyright into a form of private censorship.”
In its ruling, the 10th Circuit also emphasized the “commercial” nature of Netflix’s use of the clip, noting that “Tiger King” was streamed by 34 million viewers in its first 10 days of release, and finding that weighed against a claim of fair use.
Sepi’s attorney, Andrew Grimm, likewise stressed Netflix’s commercial power in arguing that the streamer had taken advantage of his client. He noted that Sepi was paid just $150 per week, plus lodging in a trailer, while he worked at Exotic’s private zoo.
“It’s not fair for one of the world’s largest media companies to take an aspiring creator’s footage without compensation, without credit, without his permission, and then use it in the most commercial manner,” Grimm argued in his appellate brief.
Perez, a partner at Donaldson Callif Perez, argued that nearly all documentaries — from the smallest independents to Netflix juggernauts — are made with some hope of a commercial payoff.
Since the Warhol decision, Perez said his advice to filmmakers on “fair use” has become slightly more conservative. He said that he advises against lifting footage from another documentary — as that is too similar to the intended use. And he said he warns to be careful when using still photographs.
But he said the “Tiger King” decision — if it stands — would go much farther in limiting filmmakers’ choices.
“It throws in a tremendous amount of confusion,” he said. “We’re really, really hoping this changes.”
