Ace Ventura v. Joe Exotic
Nothing defined life in the time of COVID quite like Tiger King and, quite like COVID, we are still talking about Tiger King nearly two years later. On Christmas Eve, the production company behind Ace Ventura: When Nature Calls sued Netflix and the producers of Tiger King for copyright infringement because of the inclusion of five seconds worth of footage. It is a bizarre move for the owner of the original film, but, then again, Joe Exotic is a magnet for absurdity. The complaint quotes from Wikipedia[1] and puts forth some pretty incredible theories, including that When Nature Calls “enhance[d] the commercial value of Tiger King by (1) demonstrating the frequent use of wild animals in various cinematic productions, (2) adding levity to the first episode of the docuseries, an important factor in driving traffic to the episodes of Tiger King which follow, and (3) indicating by inference that the makers of Ace Ventura 2 are promoting Tiger King favorably.”
What is so perplexing is that Netflix’s use appears to fit squarely within the well-established metes and bounds of fair use. The two brief clips from the film, one of a monkey on Ace Ventura and one of Ace on an elephant, are used as visuals while animal trainer, Bhagavan Antle, describes how his big cats have appeared in “five hundred gigantic international movies” including Jungle Book, Doctor Doolittle, and Mighty Joe Young, as well as Ace Ventura. The law provides that the use of copyrighted material for the purposes of criticism, comment, news reporting, teaching, scholarship, or research is not copyright infringement in certain circumstances.[2] In determining whether a use is considered fair use, the statute outlines four non-exclusive factors for consideration: (i) the purpose and character of the use, including whether the use is commercial or for educational or nonprofit purposes; (ii) the nature of the copyrighted work; (iii) the amount of the portion used in relation to the copyrighted work as a whole; and (iv) the effect of the use on the potential market for or value of the copyrighted work.[3]
The law recognizes that even documentaries like Tiger King are “crucial to the exchange of opinions and ideas” and cautions that by “requir[ing] those wishing to produce films and documentaries to receive permission from copyright holders for fleeting factual uses of their works, we would allow those copyright holders to exert enormous influence over new depictions of historical subjects and events.”[4] They key phrase here is “fleeting factual use,” which is exactly how the production company used the clips of Ace Ventura—tying a visual of Antle’s professional animal training to his Tiger King interview. Plaintiff’s characterization of the use as an “enhance[ment of] the commercial value of Tiger King” is really just an impermissible attempt to control facts.
While Tiger King does not make a profoundly transformative use of the clips, “[e]ven making an exact copy of a protected work may be transformative, provided ‘the copy serves a different function than the original work.’”[5] The factual use here serves a completely different function from the original expressive and comedic purpose, and even if the clips “add[ed five seconds of debatable] levity” to an already easily-digestible program, the fact that the original copyrighted material is enjoyable to watch does not factor into the fair use analysis.[6]
That the seven-episode docuseries takes five seconds, without audio, of the eighty-six minute film is another significant factor for Tiger King, as is the non-existent market effect on the film. Pursuant to the fourth fair use factor, courts must decide whether Tiger King constitutes “a competing substitute for the original, or its derivative, so as to deprive the rights holder of significant revenues because of the likelihood that potential purchasers may opt to acquire the copy in preference to the original.”[7] Which in plain English means: would someone watch episode one of Tiger King over the film because of the five second clip? No reasonable person could argue that they would.
When copyrighted content is used pursuant to the fair use defense, it obviates the need to pay a license fee—which is exactly what the plaintiff was looking for here before turning to the courts. Sometimes it is easy to miss the forest through the trees when it comes to clip licensing issues. What is the big deal about giving the copyright owner of Ace Ventura: Pet Detective a couple hundred bucks to compensate them for the use? Why didn’t Netflix just pay the retroactive license fee? The practical issue with this logic is that documentaries tend to use a lot of archival material and if a license were legally required, the process would be costly, time consuming, and would ultimately chill free speech. This is why we have fair use and this is why Netflix rejected the offer for an after-the-fact license. I sympathize with them for having to defend against this lawsuit, but on behalf of documentarians everywhere I thank you for fighting the good fight and wish you luck.
[1] For as long as Wikipedia has been around, we’ve been cautioned against relying upon its information in any substantive manner. If you’re going to pull from everyone’s favorite free encyclopedia, at least be honest and admit that your basis for claiming that the film has “a cult following among male adolescents” was from an edit likely made by a male adolescent.
[2] See 17 U.S.C. § 107.
[3] See id.
[4] Bouchat v. Baltimore Ravens Ltd., 737 F.3d 932, 944 (4th Cir. 2013) (holding that the original work served “no expressive function at all [in the new work], but instead acts simply as a historical guidepost . . . within videos that construct new narratives about the history of the Ravens and the NFL”). See also Andy Warhol Foundation for the Visual Arts, Inc. v. Goldsmith, 992 F.3d 99, 113 (2d Cir. 2021) (“the secondary work itself must reasonably be perceived as embodying an entirely distinct artistic purpose, one that conveys a new meaning or message entirely separate from its source material.”).
[6] Also, absolutely no one said “I’ll watch more Tiger King” because of five second of Jim Carrey in episode one.
[7] Fox News Network, LLC v. Tveyes, Inc., 883 F.3d 169, 179 (2d Cir. 2018).
This article is intended as a general discussion of these issues only and is not to be considered legal advice or relied upon. For more information, please contact RPJ Attorney Michelle Lamardo who counsels clients on entertainment production and intellectual property matters. Ms. Lamardo is admitted to practice law in New York. Attorney Advertising.