Whyte Monkee Prods., LLC v. Netflix, Inc.

97 F.4th 699

WHYTE MONKEE PRODUCTIONS, LLC; Timothy Sepi, Plaintiffs - Appellants, v. NETFLIX, INC.; Royal Goode Productions, LLC, Defendants - Appellees.

No. 22-6086

United States Court of Appeals, Tenth Circuit

FILED March 27, 2024

Appeal from the United States District Court for the Western District of Oklahoma (D.C. No. 5:20-CV-00933-D)

Gregory Keenan, Digital Justice Foundation, Floral Park, New York (Andrew Grimm of Digital Justice Foundation, Omaha, Nebraska, with him on the briefs), for Plaintiffs-Appellants.

Robert H. Rotstein, Mitchell, Silberberg & Knupp LLP, Los Angeles, California (Emily F. Evitt of Mitchell, Silberberg & Knupp, LLP, Los Angeles, California; and Mack J. Morgan, III, of MJMLAW PLLC, Nichols Hills, Oklahoma, with him on the brief), for Defendants-Appellees.

Before HOLMES, Chief Judge, HARTZ, and CARSON, Circuit Judges.

HOLMES, Chief Judge.

Plaintiffs-Appellants, Whyte Monkee Productions, LLC and Timothy Sepi, appeal from the District Court for the Western District of Oklahoma's order granting summary judgment to Defendants-Appellees, Netflix, Inc. ("Netflix") and Royal Goode Productions, LLC ("Royal Goode"). In March 2020, Defendant Netflix released Tiger King: Murder, Mayhem and Madness ("Tiger King"), a seven-part documentary series produced by Defendant Royal Goode. Included in the series are short clips from eight videos ("the Videos") that were filmed by Mr. Sepi. Seven of the videos were filmed while Mr. Sepi was working for the Gerald Wayne Interactive Zoological Park ("the Park"). The eighth video—Travis MM Funeral Ceremony ("Funeral Video")—was shot after Mr. Sepi terminated his employment relationship with the Park. Following the release of Tiger King, Mr. Sepi registered the eight videos for copyright protection, either under his own name or the name of Whyte Monkee Productions. Plaintiffs (i.e., Mr. Sepi and Whyte Monkee Productions) then sued Netflix and Royal Goode for copyright infringement, contending that Plaintiffs owned the copyrights in the Videos and that Defendants had used clips of those videos without permission.

On April 27, 2022, the district court granted summary judgment to Defendants. First, the district court held that seven of the videos were works made for hire under § 201(b) of the Copyright Act, and thus Mr. Sepi did not own the copyrights in the works. Second, the district court found that Defendants' use of the eighth video was fair use that did not infringe upon Mr. Sepi's copyright.

On appeal, Plaintiffs argue that the district court erred in concluding that the first seven videos were works made for hire, as "Mr. Sepi's line of work was tour photography and videography, but the works in question are not related to tours, are not videography but cinematography, were not made during working hours, and were made at his home as well as his workplace." Aplts.' Opening Br. at 16. Plaintiffs also argue that the district court erred on fair use, as "all four statutory factors" weighed against such a finding. Id. In support of their position, Plaintiffs point to the Supreme Court's recent decision in Andy Warhol Foundation for the Visual Arts, Inc. v. Goldsmith, 598 U.S. 508, 143 S.Ct. 1258, 215 L.Ed.2d 473 (2023), which allegedly "supports reversal of the fair-use decision below." Aplts.' Am. Suppl. Br. at 11.

With respect to the first seven videos, we conclude that Plaintiffs have asserted a new theory on appeal—which was not raised in the district court—and have failed to argue for plain error. As such, we hold that Plaintiffs have waived this argument for purposes of this appeal. And, consequently, we uphold the district court's judgment as it pertains to the first seven videos.

With respect to the eighth video, we conclude that the district court erred in determining that Defendants were entitled to summary judgment on their fair use defense. Specifically, we conclude—in light of the Supreme Court's recent guidance in Warhol—that, contrary to the district court's ruling, the first factor does not favor Defendants; instead, it militates in Plaintiffs' favor. The second and third statutory factors do favor Defendants. But, as to the fourth factor, Defendants failed to provide any affidavits or other evidence demonstrating the absence of a market impact; consequently, they failed to meet their burden as to this factor, and the district court erred in finding that this factor weighed in their favor.

We therefore affirm the district court's judgment as to the first seven videos and reverse the court's judgment as to the eighth video, and remand to the court for further proceedings consistent with this opinion.

I

A

Joseph Maldonado-Passage, also known as Joe Exotic, founded the Gerald Wayne Interactive Zoological Park in Wynnewood, Oklahoma. The Park housed tigers, lions, and other exotic animals and was open to the public for tours. The Park also maintained a studio that was used to produce a web series called Joe Exotic TV. Joe Exotic TV was primarily an unscripted series featuring video footage from around the Park and skits invented by Mr. Exotic. In early 2015, Joe Exotic TV was produced by Rick Kirkham, who oversaw the studio operations with a team of four people.

In March 2015, Mr. Sepi traveled to the Park to discuss working for Joe Exotic TV with Mr. Kirkham and Mr. Exotic. See Aplts.' App., Vol. IV, at 22-23, ¶ 54 (Pls.' Resp. in Opp'n to Defs.' Mot. for Summ. J., filed Feb. 28, 2022). From these discussions, Mr. Sepi understood that part of what he would be doing was working on Joe Exotic TV, that he would be paid $150 per week, and that he would be allowed to live on Park property for free. See id. Only a week after starting his employment, however, a fire destroyed the studio and camera equipment. Mr. Kirkham quit, leaving Mr. Sepi as the sole videographer at the Park.

With the studio and camera equipment destroyed, Joe Exotic TV went on hiatus. During this time, Mr. Sepi continued to photograph park tours and assist with animal care around the park. Within a couple of months, however, a new production studio had been built, new camera equipment had been obtained, and Joe Exotic TV resumed production.

Mr. Sepi admits that during the day, while using the studio's equipment, "he split time taking tour photographs, filming, and editing for Joe Exotic TV, and filming campaign videos for [Mr.] Exotic,[¹] but denies that these were all part of his workday duties for the Park." Id. at 19, ¶ 17. Instead, he alleges on appeal that he was solely employed to take photography and videography of park tours. See Aplts.' Opening Br. at 67. As such, he claims that he "was making footage" for Joe Exotic TV "on his own time," because "Joe Exotic was content gold" and the footage would allow him to achieve success in the media. Id. at 10.

Following the studio fire, Joe Exotic TV returned to streaming on May 7, 2015. Each episode was preceded by a disclaimer stating that the footage is owned by Whyte Monkee Productions. Whyte Monkee Productions is an Oklahoma limited liability company that was established on May 5, 2015. The Articles of Organization include Mr. Exotic's email address, the Park's street address, and "Tim Sepi" as the signatory. Although Mr. Sepi's degree of control over Whyte Monkee Productions was contested below, he now concedes that "[f]or the purposes of this appeal, the Court should assume that Mr. Sepi was unaware of [Whyte Monkee Productions] at the time of formation." Id. at 63.

Until his resignation in August 2016, Mr. Sepi continued to film and produce videos for Joe Exotic TV. During and after Mr. Sepi's tenure at the Park, filmmakers associated with Defendant Royal Goode were shooting footage at the Park and editing what would eventually become the Tiger King series. See Aplts.' App., Vol. I, at 162, ¶ 35 (Defs.' Mot. for Summ. J., filed Jan. 27, 2022). In addition to its own footage, Royale Goode licensed film clips from Mr. Exotic and Jeffrey Lowe—the new owner, after around February 2016, of the Park—including the works that Mr. Sepi now claims to own. See id.

While creating the documentary, Royal Goode emailed Mr. Sepi to obtain his assistance in accessing video footage that was apparently located at the Park. Royal Goode also offered to compensate Mr. Sepi for his efforts. Mr. Sepi responded to Royale Goode's email, telling them to contact Mr. Exotic because he no longer worked there. He also did not assert any ownership interest in the footage at that time.

In March 2020, Netflix released Tiger King and included clips from the following seven videos that were filmed by Mr. Sepi while he was an employee of the Park:

1. Disrespectful Tomato Thrower Trouble

2. Joe - Getting Dragged by Lion

3. Joe - Presidential PSA

4. Mobile Trailer Inspections for Volunteers

5. Country Music Artist Joe Exotic - Bring It On

6. Joe Exotic Country Music "Here Kitty Kitty"

7. Joe Exotic TV - Tornado on the Ground

See id. at 163, ¶ 39. These videos were all filmed by Mr. Sepi between May 2015 and August 2016. See id. at 163-66, ¶¶ 40-46.

The eighth video—Travis MM Funeral Ceremony—was shot after Mr. Sepi terminated his relationship with the Park. See id. at 166, ¶ 47. The video is approximately twenty-three minutes and fifty-two seconds long and documents the funeral of Mr. Exotic's husband, Travis Maldonado. See id. The Funeral Video depicts guests arriving at the funeral, Mr. Exotic giving a eulogy, and the showing of a memorial video. Mr. Sepi shot the video by placing the camera on a tripod and leaving it running. See id. The video was livestreamed on the Joe Exotic TV YouTube page and remained there after the funeral. See id. A clip from the video appears in a segment of Tiger King lasting approximately one minute and six seconds. See id. at 167, ¶ 49. The clip focuses on portions of Mr. Exotic's eulogy and is interspersed with other footage, including comments from Mr. Maldonado's mother that are critical of Mr. Exotic. See id.

Following the release of ...