Netflix Escapes ‘Tiger King’ Suit as Clips Deemed Work-for-Hire

Netflix thwarted a cameraman’s copyright claims because he filmed the clips used in its “Tiger King” docuseries as part of his job, an Oklahoma federal court ruled Wednesday.

Timothy Sepi’s arguments about the nature of the clips directly contradicted his own 2016 testimony in another proceeding involving Joseph Maldonado-Passage—known professionally and in the show as as Joe Exotic—the U.S. District Court for the Western District of Oklahoma said.

The court excluded Sepi’s 2021 testimony under the “sham affidavit doctrine,” concluding that he failed to provide a rational reason for why he lied in 2016. Without that testimony, there was no effective evidence that the clips were made outside of his responsibility as a park employee, critical to avoiding the conclusion that his employer owned them.

“Litigants cannot be permitted to create a fact issue by simply dismissing as a lie prior sworn testimony that no longer serves their purpose, particularly when they cannot offer anything other than a nonsensical, inconsistent explanation for their actions,” the court said.

One of the eight videos at issue, from the funeral of Exotic’s husband Travis Maldonado, was made after Sepi’s employment ended. The court deemed Netflix’ use of that footage fair use.

Sepi was hired in 2015 to work as a cameraman for the online series “Joe Exotic TV.” He was paid $150 per week and lived at the park for free.

A week into his employment, Sepi was left as the lone cameraman when the former producers quit in the wake of a fire that destroyed the studio and equipment. Subsequent “Joe Exotic TV” videos had a disclaimer that they were owned by Whyte Monkee Productions LLC, an entity listing Sepi as its signatory.

Whyte Monkee and Sepi’s 2020 lawsuit claimed that Royal Goode Productions LLC, the makers of “Tiger King: Murder, Mayhem and Madness,” infringed Sepi’s videos. He said he had been hired only to take pictures, and the video clips at issue weren’t paid for or part of his job responsibility.

Unexplained Contradictions

Sepi’s 2016 testimony came during garnishment proceedings brought by Carole Baskin to enforce a $1 million trademark infringement award against Exotic. Sepi said at the time that he was a park employee whose work included taking pictures “and videoing whatever happens on the park,” the court wrote. He also testified thathe had nothing to do with creating Whyte Monkee, didn’t control it, never saw the LLC registration paperwork, and didn’t have access to the listed email account.

In 2021, his story had changed significantly. He said that forming Whyte Monkee had been his idea and he had filled out the paperwork. He also admitted to committing perjury in 2016, according to the opinion, and when pressed said he had been trying to “keep myself safe” because he didn’t know what Exotic was capable of.

But Sepi couldn’t provide a reason why the truth would have put him in danger of any kind of retribution, the court said. He hadn’t demonstrated confusion at the time and couldn’t explain why he’d said he reviewed the 2016 testimony just prior to his 2021 testimony and believed it was truthful.

Without his own testimony, Sepi had only that of a park manager, whose declaration that Sepi’s videography was separate from his work failed to include any facts indicating how he knew that, the court said.

Even if it accepted Sepi’s testimony, the court said, “videography is sufficiently related to photography to be considered ‘of the kind’ of work” he was hired to do.

The funeral footage was deemed fair use because, while Sepi said he created the video “for remembrance,” the series used a small portion of it for entirely different reasons. The court also noted that use of the material in “Tiger King” wouldn’t hurt any feasible market for Sepi’s work.

Judge Timothy D. DeGiusti wrote the opinion.

Sepi and Whyte Monkee were represented by Phillip L Free Jr. Netflix was represented by Mitchell Silberberg & Knupp LLP.

The case is Whyte Monkee Productions Inc. v. Netflix, 2022 BL 145543, W.D. Okla., No. 20-933, summary judgment granted 4/27/22.