Reel Rights: Copyright’s Collision With Documentaries

April 14, 2025April 11, 2025 / Washington Journal of Law, Technology & Arts / Leave a comment

By: Alexander Tranquill

The Rise of Tiger King

Remember the start of the Covid-19 pandemic? Like myself, many Americans turned to TV to find comfort, and, in those first few surreal weeks, many found themselves watching one particularly enthralling, peculiar, and utterly outlandish story: Tiger King. Tiger King is a Netflix documentary series released in March 2020, which details the increasing tensions between rival big cat eccentrics, eventually culminating in Joe Exotic’s arrest in a murder-for-hire plot of rival Carole Baskin. While Tiger King initially generated massive media attention, it has more recently been the subject of intense copyright litigation.

If you are unfamiliar with this story, Joe Exotic was an internet personality long before Tiger King. With a substantial presence on YouTube, the Netflix documentary heavily relied on video footage originally created by Exotic and his employees. The suit now at issue, Whyte Monkee v. Netflix, centers on Netflix’s use of a video that shows Exotic giving an eulogy at his late husband’s funeral. The video was originally shot by Timothy Sepi, an employee and videographer at Exotic’s Gerald Wayne Zoo. However, Sepi now claims he never gave Netflix permission to use his footage, thus forming the basis for his copyright infringement claim.

During litigation, the district court originally found that Netflix’s use of the footage fell under the fair use exception to copyright infringement. This decision was later reversed by the Tenth Circuit, but, after a great deal of consternation and a flurry of amicus briefs, the Tenth Circuit later vacated its ruling and granted a petition for rehearing. Though the final decision is still pending, this case is significant because the decision has major implications for documentary filmmakers, while also raising important questions about the rights of content creators in our age of smartphones and social media––where personal footage is often reused by others.

Copyright Protections and Fair Use

To understand the legal questions raised in Whyte Monkee, we must explore the interaction between copyright protections and the doctrine of fair use. Overall, copyright is a type of intellectual property that protects original works of authorship (i.e. paintings, photos, writings, movies) against use by others. However, authorship is a fairly low bar, requiring only a minimal level of creativity. If any creativity can be shown, copyright protections immediately attach when the work is fixed (published) in a tangible medium. As a result, recordings, much like Sepi’s home-video, are often considered copyrightable.

The fair use exception to copyright infringement allows a party to use a work without the permission of the creator if the copying is done for a limited or “transformative” purpose. While there are no hard and fast rules, courts will consider four factors in determining fair use: (1) the purpose and character of the use, (2) the nature of the copyrighted work, (3) the amount and substantiality of the portion used, and (4) the effect of the use on the market for the copyrighted work. Recently, courts have taken particular interest in the first factor, considering the significance of any changes made to the original while also assessing the purpose of the work.

The Supreme Court’s Warhol Decision

Recently, the Supreme Court issued a detailed analysis of this first factor in Warhol v. Goldsmith. Here, Warhol was sued for a series of silkscreen prints he created of Prince, which he based on a copyrighted image captured by Goldsmith. Considering the purpose and character of Warhol’s silkscreens, the Court clarified that it is no longer sufficient for a work to simply add “new expression” to the original; the key question is whether the work serves “a purpose distinct from the original.” While purpose is not necessarily limited, derivative works should comment on, criticize, or provide otherwise unavailable information to the original. Therefore, although Warhol added new artistic expression to the original, his work did not constitute fair use because its purpose and character aligned with Goldsmith’s––both works were licensed to media companies, merely being used “to illustrate a magazine about Prince with a portrait of Prince.” Thus, because Warhol’s work simply used Goldsmith’s image as a template for the same commercial purpose, it failed to seriously comment on, criticize, or add information to the copyrighted image.

Applying the Warhol Precedent

Following in the footsteps of Warhol, the Tenth Circuit overturned the district court’s decision in Whyte Monkee, relying on the purpose and character of the use. While the district court found Netflix’s use transformative as it incorporated the funeral clip into a broader narrative, the Tenth Circuit, citing Warhol, concluded that fair use requires the derivative work to serve a distinct purpose. Specifically, the court required the derivative work to critically comment “on the substance or style of the original composition.” With this backdrop, the court found that Netflix only used the funeral footage to show Exotic’s purported megalomania and showmanship. Accordingly, Netflix failed to seriously comment on the style of the video clip itself, instead using the video to “target[] a character in the composition.” Therefore, because Netflix used the funeral footage to detail Exotic’s life and not to comment on the style of the footage, the Tenth Circuit found that the first factor weighed against fair use.

So, what is all the uproar about? The amicus briefs suggest that this decision will have a chilling effect on the documentary industry, confining filmmakers to commenting on the composition of footage itself (i.e. lighting, angles, editing). In the en banc rehearing, the court re-examined Netflix’s intent behind including the funeral clip in the documentary, focusing on Netflix’s use of the video to detail Exotic’s callous attitude. Thus, the court’s review likely reflects an effort to broaden the meaning of transformative purpose.

In its initial decision, the Tenth Circuit severely narrowed Warhol’s definition of distinctive purpose, requiring a derivative work to critically comment “on the substance or style of the original composition.” While this was an important factor in Warhol, it is not the only relevant factor in examining the purpose and character of a new work. First, the Court in Warhol explicitly looks to purposes outside critical commentary to determine fair use. For example, the Court found that Warhol and Goldsmith’s works shared the same commercial purpose—both were used to “illustrate a magazine about Prince with a portrait of Prince.” Furthermore, the Court in Warhol notes that the “degree of difference” between the works is relevant in the fair use analysis, being weighed together with purpose to determine whether the derivative work is transformative. Ultimately, the Tenth Circuit seems poised to consider other factors in its analysis of the purpose and character of the use. Such a decision would better support filmmakers by providing them greater access to material as they attempt to capture many of the compelling narratives in our world today. As a result, Netflix should continue to assert that its use of the video serves to illustrate Exotic’s personality—distinct from Sepi’s purpose of simply commemorating the funeral. Further, Netflix should revive its district court arguments, claiming the documentary is substantially different from Sepi’s video because it continually interrupts this video with comments from the deceased’s mother and ties the video into the broader story arc to highlight Exotic’s character. Ultimately, these arguments mirror the Supreme Court’s focus in Warhol, offering the Tenth Circuit a precedential foundation to recognize a broader interpretation of transformative use.

Competitive Cheer and Anticompetitive Practices: Varsity Spirit’s Antitrust Struggles

March 17, 2025March 14, 2025 / Washington Journal of Law, Technology & Arts / 1 Comment

By: Hannah Gracedel

For decades, Varsity Spirit (“Varsity”) has been the undisputed champion of competitive cheerleading. They outfit teams, run camps, and, most importantly, control the biggest competitions in the industry. But while cheerleaders are trained to execute flawless routines, Varsity’s business decisions have drawn the attention of those who argue that its grip on the cheerleading world might be less about fair cheerleading competitions and more about unfairly dominating the competitive cheerleading market. Two recent class action suits, one in 2023 and another in 2024, claim that Varsity gained and maintained significant control of every aspect of the competitive genre, “All Star Cheer” through its anticompetitive practices. Both suits resulted in major settlements amounting to $126 million total.

What is All Star Cheerleading

Cheerleading has grown significantly since its inception in 1882, with an estimated 3.5 million athletes competing globally. While many Americans might be familiar with cheerleading, some might be surprised to learn about a subdivision called All Star Cheer. All Star Cheer focuses primarily on competition, whereas traditional school cheerleading involves crowd engagement, school spirit activities, as well as the option to compete. All Star teams are most often organized by private gyms, which form the teams based on skill and age level. At competitions, All Star Cheer teams perform a two and half minute routine composed of tumbling, stunting, pyramids, dance, and cheer segments. All Star Cheer is a notoriously expensive sport, where a full season can cost athletes around $8,000-$10,000 due to gym fees, uniform costs, travel expenses, competition fees, etc.

Who is Varsity Spirit

Varsity Spirit was founded in 1974 by Jeff Webb and started as a cheerleading camp company. The company later began manufacturing apparel for cheerleading teams, organizing competitions, and operating summer training camps. Today, Varsity runs the biggest and most prestigious cheerleading competitions and almost every single All Star Cheer competition as well. Varsity gained its dominant 90% share of the cheer competition market primarily by acquiring smaller competitors, including Jam Brands in 2015, Spirit Celebrations in 2016–2017, and Epic Brands in 2018. Essentially, if you are a competitive cheerleader, almost every competition you compete in is controlled by Varsity.

Antitrust Law

Varsity’s dominance in the competitive cheerleading industry has raised antitrust concerns. Antitrust law is about keeping the playing field fair by preventing businesses from using their power to stifle competition. Regulations like the Sherman Antitrust Act and the Clayton Act prohibit companies from monopolizing markets or using unfair practices, such as price-fixing, bid-rigging, or exclusive contracts, to restrict competition. The purpose of these laws is to safeguard consumers and other businesses from being coerced into bad agreements due to the excessive market power of a single company. However, not all monopolies are illegal. A company can gain dominance or a monopoly fairly by offering the best products or services at the best price, and that’s just healthy competition. But when a company reaches the top by stifling competition rather than fostering it, antitrust law will step in.

The Class Action Settlements

In March 2023, Varsity Brands agreed to pay $43.5 million to resolve allegations that it abused its market dominance to artificially inflate prices for private gyms and spectators. This action was brought by direct purchasers, which are those who paid registration and associated fees directly to Varsity to participate in Varsity competitions. Two markets were identified where Varsity exercised its monopoly power: the “competition” market and the “cheer apparel” market. The plaintiffs alleged that Varsity dominated 80% of the All Star cheerleading competition market and 90% of the All Star apparel market through a series of “exclusionary schemes.”

The alleged “exclusionary schemes” were the exclusionary contracts offered to All Star Gyms that were incentivized by the promise of rebates. A rebate is a partial refund given to a buyer after a purchase, which is different from a discount where the price reduction is applied at the time of purchase. The process to receive a rebate typically involves customers paying full price for an item and later submitting proof of purchase to the retailer, who then sends the customer the refund in the form of cash or future discounts on products.

Varsity offered two rebate programs, the Network Agreement and the Family Plan. The Network Agreement, offered to large prestigious gyms widely known at their competitions, required a commitment to attending at least 5 of Varsity’s All Star Competitions and spending at least $30,000 per year on registration fees. Once gyms met this threshold, they earned increasing rebates for every dollar spent beyond it, creating a strong financial incentive to stay within the Varsity system. For smaller gyms that could not meet the spending threshold, Varsity offered a modified version called the Family Plan, which required attendance at 6 Varsity competitions in order to start receiving rebates. The rebates here were in the form of “Varsity Fashion Dollars,” which could only be used on varsity apparel purchases.

Because gyms and their teams can only attend a limited number of competitions each season, these agreements strongly incentivized All Star gyms to participate in Varsity events and purchase Varsity apparel exclusively. Attending a non-Varsity competition meant forfeiting the chance to earn higher rebates, which teams could not afford to do, when that money could then be used on Varsity competition uniforms. Once gyms were locked into Varsity’s exploitative ecosystem, Varsity was able to inflate its prices, thus possibly furthering demand for their rebate programs.

In May 2024, Varsity Spirit agreed to an $82.5 million settlement to resolve another class-action lawsuit. Unlike the 2023 case, this lawsuit was brought on behalf of indirect purchasers – those who paid competition registration fees, camp fees, or bought apparel through a gym or school. The lawsuit covered all the same issues as the previous, such as unlawful acquisitions of rivals, anticompetitive exclusive dealing agreements, and Varsity overcharging consumers.

In addition to the monetary settlements, Varsity agreed to end any rebate or discount program related to their cheer competitions.

Conclusion

What makes Varsity’s antitrust issues particularly interesting is how long these practices went unnoticed. Unlike tech monopolies or pharmaceutical price-fixing, competitive cheerleading is a relatively niche industry that does not draw much regulatory attention. But the consequence of Varsity’s practices going unchecked for so long has driven many working-class participants out of the sport simply because it is no longer affordable. Although both recent cases settled before reaching trial, they highlight how antitrust law can play a crucial role in curbing corporate abuses in power, ultimately safeguarding consumers and promoting fair competition for businesses.

Anti-Cheating Privacy Concerns and A Tool To Combat Them

March 13, 2025March 14, 2025 / Washington Journal of Law, Technology & Arts / 2 Comments

By: Wolf Chivers

Anti-Cheating Invasiveness

Remember when preventing cheating just meant the teacher watching to ensure nobody was peeking at their neighbor’s paper? As life has moved online, methods of cheating—in diverse contexts ranging from education to video games—have become more sophisticated. While cheating by unplugging your sibling’s controller might be done in good fun, cheating can also have major consequences in areas like education or esports tournaments, where hundreds of thousands or millions of dollars might be at stake.

In recognition of the increased sophistication of cheating, anti-cheating measures have engaged in an arms race. In the process, some have become highly invasive. For example, video game anti-cheat software might once have monitored running programs, but current generations require the deepest possible access to a computer, raising concerns about exposure to ransomware, invasive monitoring, or remote system access.

In schools, children as young as kindergarten age are being monitored with anti-cheat test-proctoring software designed to track everything from what is on their desks to how long they look away from the screen. In some cases, students are forced to allow school officials to inspect the contents of their bedrooms via webcam. In others, administrators can unilaterally declare that someone must have been cheating simply for looking away from their screen. Presumably, no one would want to be accused of cheating and have all of their work on an exam invalidated because their eyes flicked away from the screen one too many times.

Education and online gaming are different topics and only two examples, but despite their differences, they are both intrusive and raise similar concerns about privacy and monitoring. In some cases, intrusive anti-cheating software could even amount to a Fourth Amendment violation. This has already happened in one case, Ogletree v. Cleveland State University. A student was required to submit to a digital room search before taking an exam, and the court held that the search was unreasonable, and violated the Fourth Amendment. Why, and is the Fourth Amendment likely to protect against other anti-cheating intrusions?

Applicability of the Fourth Amendment

The full scope of Fourth Amendment law is complicated, but because it protects against “unreasonable searches and seizures,” searches within its scope have to be, at a minimum, reasonable. The general rule for determining whether a search is reasonable is to ask whether the subject of the search had a reasonable expectation of privacy in whatever or wherever was searched. Unsurprisingly, given how many times the word “reasonable” appears in that framing, there have been quite a few arguments over where people have reasonable expectations of privacy, but it is at least clear that expectations of privacy are highest in the home.

A person’s expectations of privacy in the home are taken seriously; even bringing a drug-sniffing dog to the exterior of a person’s house can constitute an unreasonable search. The invasion in Ogletree was more overt in many ways: the student was taking the test in his bedroom, he had no opportunity to take the test another way, and he had very little choice in the matter, despite the fact that the scan would have potentially exposed sensitive documents. The school suggested that the student’s alternative was to get a zero on the exam. As a result, forcing the student to allow school officials to direct the room search was unconstitutional.

Even so, Ogletree was only one trial-level court, and despite the circumstances being Orwellian, the holding was very narrow. The case could have come out differently if even small facts had differed, such as if the school had provided an alternative means of taking the exam or if a different type of anti-cheating monitoring that was less invasive of the bedroom had been used.

There are other limitations on applying Fourth Amendment protections against anti-cheating software. For one, there are arguments about whether people have a reasonable expectation of privacy in their personal computers, and trial courts have said both yes and no. If not, then even highly invasive anti-cheating software that only monitors activity on the computer probably would not be considered an unreasonable search. For another, the Fourth Amendment only protects against searches conducted by the government, not private parties. The search in Ogletree was a governmental search because it was conducted by Cleveland State University, which is a publicly funded institution, and therefore an arm of the government. Consequently, a private university with otherwise the exact same set of facts is unlikely to run afoul of the Fourth Amendment.

Conclusion

Ogletree is perhaps less of a landmark and more of a signpost. It may not have much force on its own, but it signals the beginning of courts having to apply Fourth Amendment protections to anti-cheating software.

Nevertheless, the Fourth Amendment’s privacy protections are not absolute. For instance, the fact that the Fourth Amendment does not apply to private parties probably prevents gamers from claiming its protections when faced with anti-cheating software. Still, given how intrusive anti-cheating software has become, new protections can only be a good thing, even if they do not apply in every circumstance.

#WJLTA #anticheat #cheating #education #gaming #fourthamendment

Under The Canvas: Money Laundering in the Art World

March 11, 2025March 10, 2025 / Washington Journal of Law, Technology & Arts / Leave a comment

Photo by SevenStorm JUHASZIMRUS on Pexels.com

By: Jack Dorsey

Imagine a criminal syndicate heavily involved in the drug trade, seeking to launder the vast sums of illicit revenue they’ve generated. What better way to cleanse the tainted money than to invest in something both valuable and difficult to trace? For these criminals, the world of art dealing provides the perfect opportunity. Art has long been a haven for the wealthy, an arena where mystery, exclusivity, and high-stakes transactions reign supreme. When works like Leonardo da Vinci’s Salvator Mundi can fetch a staggering $450.3 million, it’s no wonder that anonymity and discretion is often preferred by buyers. Yet, the limited transparency creates opportunities for those seeking to exploit the art world for illicit purposes. Money laundering, a process through which ‘dirty money’ is made to appear legitimate, is one such crime that thrives in these shadows.

The Stages of Money Laundering

Illicit funds need to be cleaned in order to throw off authorities and subvert any audit systems in place. Money laundering typically occurs in three stages: placement, layering, and integration. Placement involves placing ‘dirty money’ into a legitimate financial system or using that money to purchase high value assets like art, jewelry, or real estate. The next phase, layering, requires that the money launderer facilitate a series of transactions to obscure and create a complex web of transactions. The final stage is integration where the obscured money is then re-introduced into some legitimate business venture.

Anti-Money Laundering Laws

In the United States, Anti-money laundering laws (AMLs) are regulations that aim to prevent money laundering and primarily apply to financial institutions like banks and brokerage firms, as well as insurance companies. The Bank Secrecy Act (BSA), passed in 1970, is an AML which requires financial institutes to: keep records of cash purchases for things like promissory notes, file reports for cash transactions exceeding $10,000 daily, and report suspicious activity that might signify money laundering. More recently, Congress passed the Anti-Money Laundering Act of 2020, which sought to strengthen, modernize, and streamline the existing AML regime through regulatory reform, and improve financial industry engagement. These reporting requirements could possibly extend to an art dealer engaging in suspicious transactions who is a client of the bank. However, the nature of art dealing provides numerous opportunities to conceal sales, creating the potential for money laundering schemes.

Reporting Requirements of Art Dealers

According to the International Monetary Fund, auction houses and art sellers typically do not have an obligation to report large cash transactions to governing authorities. Unlike real estate or jewelry, where value is more easily assessed through tangible metrics (such as square footage, weight, or quality), art’s value is highly subjective. The price of artwork is largely driven by the buyer’s desires, thus making it difficult to discern legitimate transactions from illicit ones. When analyzed in the money laundering stages, placement and integration are straightforward given the subjectivity, private auctions, and high value transactions typical in the art world. Moreover, there is often no need for layering, as a high price for a piece of art may appear completely legitimate due to the subjective nature. Simply put, a criminal can anonymously purchase a high-value piece of art, hold it for a time, and then resell it for a large sum, making the transaction appear legitimate due to this subjectivity.

Modern Legislative Efforts

The Illicit Art and Antiquities Trafficking Prevention Act was introduced in the House in 2018 with the goal to extend the BSA to art dealers. However, the Act has gained little traction since then. As a result, the scrutiny placed on art dealings remains limited. Experts place the prevalence of money laundering in the three billion dollar range, making clear that this is a significant problem. The existence of digital art like NFTs, digital assets created using blockchain technology, complicates this issue further given the decentralized nature of blockchain tokens.

Conclusion

The intersection of art dealing and money laundering presents a complex problem. Without strong regulations, criminals have a clear path to launder illicit money. While efforts like the Illicit Art and Antiquities Trafficking Prevention Act offer some hope, they remain largely conceptual and do not fully address the scale of the issue.

TikTok: The Return of the Ban

March 10, 2025March 10, 2025 / Washington Journal of Law, Technology & Arts / Leave a comment

By: Jonah Haseley

The TikTok ban might seem like old news, but readers can expect it to be back in the headlines and their TikTok feeds by April. Here’s why:

In April 2024, President Biden signed a bill into law that would ban TikTok from app stores in America. The law would allow TikTok to survive in the US if its Chinese parent company, Byte Dance Ltd., sold it to a new owner. TikTok sued, arguing that the law was unconstitutional, but the United States Supreme Court upheld the law on January 17, 2025. By January 19^th, TikTok was down in America. On January 20, 2025, Trump retook the White House. TikTok was already back online, and he signed an executive order stating that the government would not enforce the ban for another 75 days. The order expires on April 5.

Potential sale

So, by April 5^th, someone will have to buy TikTok, or it could be banned in the US. TikTok has nearly 2 billion users globally, so it would be expensive. The company is not publicly traded, but sources estimate it would cost at least tens of billions of dollars. Any sale would have to be approved by the Chinese government, which would complicate the transaction. The President has proposed creating an American sovereign wealth fund, which could be a way for the US government to acquire a direct stake in TikTok. However, plans for the fund are vague and would likely require participation from Congress to form.

Congressional action

Getting TikTok to sell is not the only way to ensure Americans can keep using it. Some members of Congress have opposed the ban since it was passed and filed an amicus brief with the Supreme Court when the case was being litigated urging them to strike down the law. In January, Representative Ro Khanna and Senator Rand Paul introduced the bipartisan and bicameral Repeal the TikTok Ban Act, which would do exactly what it says. Additionally, it seems unlikely that any ultimate resolution will be reached before April 5^th, and lawmakers have recognized that, with Senator Markey introducing a bill to extend the deadline for the ban.

The bigger picture

For TikTok to survive long term in America, either Congress needs to act, or someone needs to buy it. However, that does not necessarily mean the app can continue functioning as usual until April 5^th. The law banning TikTok is still on the books, and the President’s executive order does not change that. It does tell US service providers that the government will not enforce the ban against them until April 5^th, so the government is essentially endorsing breaking that law for now. If the executive order lapses without any other measure preventing the ban from going into effect, companies like Google and Apple could pay fines of $5,000 per user. Of the 2 billion TikTok users worldwide, 170 million live in the US. That could mean fines totally approximately $850 billion, which, even for tech giants, is considerable. Fundamentally, delaying enforcement of the law constitutes the executive branch of the government refusing to execute a law passed by Congress and upheld by the courts. Though support for the ban has declined, the rule of law is at issue when the government declines to enforce the law. The President has only been in office for a little over a month, and already there are concerns about whether his administration will follow court orders. Preserving people’s freedom to use the apps they want to use is important, but the real test for our institutions will come when the subject matter of a court order does not draw public attention like a 7-second video.

#TikTok #TikTokBan #SaveTikTok

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