‘Tiger King’s’ Ace Ventura Cameo Tests Use of Swiped Movie Clips

A lawsuit against the creators of Netflix’s “Tiger King” over seconds of film taken from “Ace Ventura 2" reveals the tension between protecting copyrights on existing creations and using clips as building blocks for new ones.

The dispute carries implications for when it’s fair to harness snippets from other works in new creations. Courts often call harm to the market of the original work the most critical factor in fair use analyses, and a robust clips-licensing marketplace can—but doesn’t always—tip that factor to make it more difficult to claim fair use.

Case law directly analyzing clips isn’t plentiful, because licenses or settlements often cost less than litigating a fair use defense. Some content producers—especially less well-heeled ones—just settle for different material.

Splicing in movie clips often doesn’t hurt the market for the original movie. But that doesn’t mean highly distinctive, creative characters and scenes don’t generally merit protection, copyright law professor Philippa Loengard of Columbia Law School said.

“There’s a licensing structure in place because content producers produce content that’s attractive to third parties interested in depicting either a character or situation from the original work. And they should be compensated for that,” Loengard said.

But the existence of a clip-licensing market doesn’t automatically establish market harm and hamper a fair use defense, according to precedents.

Arguments that an alleged infringer’s use of short clips harms a filmmaker’s business of licensing them are often circular and ultimately stem from litigation threats, copyright professor Mary LaFrance of the University of Nevada at Las Vegas said.

“The reason there is a market for clips this short is that people can’t afford to litigate fair use,” LaFrance said. “The market exists because we’ve extorted people by threatening to take them to court over things that are fair use.”

Matter of Seconds

Goode Filmes LLC and Netflix used two “comedic scenes” from “Ace Ventura 2" featuring star Jim Carrey to “enhance the commercial value” of “Tiger King,” Morgan Creek Productions Inc., the “Ace Ventura 2" producer, alleged in a Dec. 27 complaint in the U.S. District Court for the Central District of California.

The clips with Carrey riding an elephant and with a monkey on his shoulder were in a sequence of clips from movies featuring wild animals in the first episode, Morgan Creek said. They helped the docuseries demonstrate use of wild animals in film, add levity, and suggest Ace Ventura’s producers support the docuseries, it said.

The complaint said the clips combined for about five seconds. The producers are seeking the statutory damages maximum of $150,000 for each of two willfully infringed works, as well as actual damages and disgorgement of profits from the infringement.

Around the 32-minute mark of the first episode currently available on Netflix, the two clips referenced appear consecutively for about 1.5 seconds combined, shorter than claimed in the complaint. The images appear as private zoo owner and animal trainer Bhagavan Antle describes his work training animals for Hollywood movies, including “Ace Ventura.”

Morgan Creek’s attorney didn’t immediately respond to a request for comment, nor did representatives for Netflix or Goode.

Court Rulings

Courts have said that while even potential markets for works or derivatives can weigh against fair use, they don’t in every case.

The Supreme Court, in its seminal 1994 fair use decision on a “Pretty Woman” rap parody, Campbell v. Acuff-Rose Music Inc., said only markets for derivatives “that creators of the original works would in general develop or license to develop” should be considered in the market-harm factor. Markets for transformative works like parodies aren’t relevant, it said.

Later rulings in the U.S. Courts of Appeals for the Second and Ninth Circuits, the two dominant copyright law circuits, have weighed transformativeness to decide whether a potential licensing market should be considered under the market harm factor.

Transformativeness, which plays into the “nature of the use of the original” first factor, represents a complicated question unto itself. Courts have long struggled to draw boundaries outlining how much the use and its purpose must differ from the original to qualify as transformative.

‘Hard to Say’

Based on the allegations in the complaint, Loengrad said “Tiger King” appears to have tried to capitalize on a popular, creative character from a highly protectable work. She also said five seconds is a relatively long clip that would “cost a bundle to license,” and that the docuseries did little to transform the work.

But Loengrad said the notion of a shorter clip—only 1.5 seconds—“changes a lot” under a fair use analysis, and in that context, it “does seem transformative.”

According to LaFrance, even five seconds is “not much more than a still photo.” The brevity and the different purposes create a strong fair use argument. Even if the work wasn’t deemed transformative, she said, the “more than colorable” defense should preclude willfulness and cap statutory damages at $30,000 per work infringed.

But some filmmakers can’t afford the kind of defense the makers of a hit Netflix series can, LaFrance said. They settle for lesser clips or pay for what should be fair use, she said.

Even cases that get to the courts face a difficult task analyzing real and even potential markets, and figuring out how transformative is transformative enough to disregard them.

“It’s so hard to say where a line should be,” Loengard said.