Case 5:23-cv-03438-PCP Document 41 Filed 04/16/24 Page 1 of 8
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`UNITED STATES DISTRICT COURT
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`NORTHERN DISTRICT OF CALIFORNIA
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`WHYTE MONKEE PRODUCTIONS LLC,
`et al.,
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`Plaintiffs,
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`v.
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`NETFLIX, INC.,
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`Case No. 23-cv-03438-PCP
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`ORDER DENYING MOTION TO
`REMAND
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`Re: Dkt. No. 25
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`Defendant.
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`This a copyright dispute involving the Netflix series Tiger King. Plaintiffs Timothy Sepi
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`and Whyte Monkee Productions LLC allege that Netflix, Inc. displayed unauthorized derivatives
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`of several of their copyrighted videos in violation of the copyright laws of several foreign nations.
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`Netflix removed the action from state court and plaintiffs now move to remand, contending that
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`this Court lacks federal question jurisdiction and that Netflix, a forum defendant, is ineligible to
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`remove this case on the basis of diversity jurisdiction. Because at least one of plaintiffs’ claims
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`raises a substantial and disputed question of federal copyright law, the motion to remand is denied.
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`I.
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`Background
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`Mr. Sepi is a creative professional who controls a film production company called Whyte
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`Monkey Productions, LLC. Mr. Sepi claims that over the last ten years, he personally created
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`several cinematographic works, either on his own or under the auspices of Whyte Monkee.
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`According to the complaint, several of these works included authorship designations indicating
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`that Whyte Monkee LLC was the author. The complaint alleges that Netflix worked with another
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`company to produce “cuts” of these works that were used in its reality series Tiger King, and that
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`Netflix thereafter posted on its streaming platform unauthorized works that were derived from
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`plaintiffs’ copyrighted works.
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`Case 5:23-cv-03438-PCP Document 41 Filed 04/16/24 Page 2 of 8
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`In late 2020, Mr. Sepi and Whyte Monkee filed an action against Netflix in the United
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`States District Court for the Western District of Oklahoma asserting claims involving the same
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`cinematographic works. The claims in that litigation all arose directly under the federal Copyright
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`Act. In April 2022, the Oklahoma district court granted summary judgment in favor of Netflix,
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`concluding that plaintiffs did not own seven of the eight videos at issue and that the use of the
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`eighth video constituted a fair use. Whyte Monkee Prods., LLC v. Netflix, Inc., 601 F. Supp. 3d
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`1117, 1123 (W.D. Okla. 2022). On appeal, the Tenth Circuit affirmed the district court’s grant of
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`summary judgment with respect to the seven unowned videos but reversed with respect to the
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`eighth video and remanded for further consideration of Netflix’s fair use defense. Whyte Monkee
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`Prods., LLC v. Netflix, Inc., ––– F.4th ––––, 2024 WL 1291909, at *1 (10th Cir. Mar. 27, 2024).1
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`In March 2023, nearly a year after summary judgment was granted to Netflix in the
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`Oklahoma litigation, plaintiffs filed this action in California state court alleging that Netflix
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`publicly performed, displayed, and distributed unauthorized derivatives of their copyrighted works
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`in Australia, Great Britain, Canada, France, Germany, Italy, Japan, South Korea, New Zealand,
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`and Spain. Plaintiffs asserted copyright claims under the laws of these countries but did not assert
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`U.S. copyright claims.
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`In July 2023, before Netflix had been served in the California state court action, Netflix
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`removed the case to federal court, asserting that this Court has both federal question and diversity
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`jurisdiction over plaintiffs’ lawsuit. Plaintiffs timely moved to remand this matter to state court.
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`II.
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`Legal Standards
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`Federal district courts are courts of limited jurisdiction. 28 U.S.C. § 1331 provides for
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`federal question jurisdiction, authorizing “jurisdiction of all civil actions arising under the
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`Constitution, laws, or treaties of the United States.” 28 U.S.C. § 1332 provides for diversity
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`jurisdiction, authorizing “jurisdiction of all civil actions where the matter in controversy exceeds
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`… $75,000 … and is between … citizens of different States.”
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`1 The Court takes judicial notice of these proceedings for their relevance to this case, but does not
`take notice of any underlying facts set forth in the cited opinions.
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`Case 5:23-cv-03438-PCP Document 41 Filed 04/16/24 Page 3 of 8
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`Cases filed in state court over which a federal court would have had original jurisdiction
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`can be removed to federal court under 28 U.S.C. § 1441(a). But Section 1441(b) provides an
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`exception, known as the “forum defendant” rule, which specifies that an “action otherwise
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`removable solely on the basis of [diversity] jurisdiction … may not be removed if any of the
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`parties in interest properly joined and served as defendants is a citizen of the State in which such
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`action is brought.”
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`28 U.S.C. § 1447 sets out certain procedures that federal district courts must follow after
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`removal. In particular, it directs that if “it appears that the district court lacks subject matter
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`jurisdiction, the case shall be remanded.” “The removal statute is strictly construed, and any doubt
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`about the right of removal requires resolution in favor of remand. The presumption against
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`removal means that the defendant always has the burden of establishing that removal is proper.”
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`Moore-Thomas v. Alaska Airlines, Inc., 553 F.3d 1241, 1244 (9th Cir. 2009) (cleaned up).
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`III. Analysis
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`To establish that removal to this Court was proper, Netflix must show that this Court has
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`either federal question or diversity jurisdiction over this action.
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`A.
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`Federal Question Jurisdiction
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`“The general rule, referred to as the ‘well-pleaded complaint rule,’ is that a civil action
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`arises under federal law … when a federal question appears on the face of the complaint.” City of
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`Oakland v. BP PLC, 969 F.3d 895, 903 (9th Cir. 2020). Because “a case may not be removed to
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`federal court on the basis of a federal defense,” a “plaintiff can generally avoid federal jurisdiction
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`by exclusive reliance on state law.” Id. at 904 (cleaned up). But there are exceptions. One is where
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`“a federal issue is (1) necessarily raised, (2) actually disputed, (3) substantial, and (4) capable of
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`resolution in federal court without disrupting the federal-state balance approved by Congress.” Id.
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`Another “allows removal where federal law completely preempts a plaintiff’s state-law claim.” Id.
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`(cleaned up). For federal Copyright Act claims, the Ninth Circuit has concluded that federal
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`question jurisdiction exists if “(1) the complaint asks for a remedy expressly granted by the
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`Copyright Act; (2) the complaint requires an interpretation of the Copyright Act; or (3) federal
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`principles should control the claims.” JustMed, Inc. v. Byce, 600 F.3d 1118, 1124 (9th Cir. 2010).
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`Case 5:23-cv-03438-PCP Document 41 Filed 04/16/24 Page 4 of 8
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`Plaintiffs’ complaint does not directly state a federal claim, nor does it seek a Copyright
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`Act remedy. To establish federal question jurisdiction, then, plaintiffs’ foreign law claims must
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`necessarily raise a substantial and disputed federal issue appropriate for resolution in this Court.
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`City of Oakland, 969 F.3d at 904. Such a federal issue is present here if plaintiffs’ claims will
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`require an interpretation and application of the Copyright Act. See JustMed, 600 F.3d at 1124.
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`1.
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`This Court’s Choice of Law Analysis Will Require Consideration of
`Federal Law and May Result in the Application of Federal Law to
`Plaintiffs’ Claims.
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`In this lawsuit, plaintiffs assert claims under foreign law, rather than under federal law or
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`the law of the state where this Court sits. As a result, before considering the merits of plaintiffs’
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`claims, the Court will be required to undertake a choice of law analysis to determine what law
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`applies.
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`Absent a federal law claim, this Court applies California’s choice of law rules. See Klaxon
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`Co. v. Stentor Elec. Mfg. Co., 313 U.S. 487, 496 (1941) (holding that a federal district court must
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`apply the choice of law rules of the state where it sits). California determines the rule of decision
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`through a “governmental interest analysis”:
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`First, the court determines whether the relevant law of each of the
`potentially affected jurisdictions with regard to the particular issue in
`question is the same or different. Second, if there is a difference, the
`court examines each jurisdiction’s interest in the application of its
`own law under the circumstances of the particular case to determine
`whether a true conflict exists. Third, if the court finds that there is a
`true conflict, it carefully evaluates and compares the nature and
`strength of the interest of each jurisdiction in the application of its
`own law to determine which state’s interest would be more impaired
`if its policy were subordinated to the policy of the other state, and then
`ultimately applies the law of the state whose interest would be the
`more impaired if its law were not applied.
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`Kearney v. Salomon Smith Barney, Inc., 39 Cal. 4th 95, 107–08 (2006) (cleaned up).
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`The governmental interest analysis in this case will require comparing each foreign law
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`plaintiffs invoke against California law, which “includes federal law.” Kashani v. Tsann Kuen
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`China Enter. Co., 118 Cal. App. 4th 531, 543 (2004). Here, the relevant California law is only
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`federal law because the Copyright Act explicitly preempts state copyright law. 17 U.S.C. § 301.
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`Thus, to determine whether to apply the asserted foreign copyright laws or the federal Copyright
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`Act (which is also California’s law), the Court will have to (1) evaluate whether there are
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`differences between the Copyright Act and the asserted foreign copyright laws, (2) examine each
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`jurisdiction’s interests in the application of its laws, and (3) weigh these competing interests.
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`This governmental interest analysis alone may raise a federal question, although it is not
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`clear whether any federal issue stemming from the Copyright Act would be substantial and
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`actually disputed. If this analysis were to result in a determination that the Copyright Act governs
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`plaintiffs’ claims, that would undoubtedly provide a substantial and disputed federal question
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`sufficient to establish jurisdiction under 28 U.S.C. § 1331.
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`2.
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`Plaintiffs’ Foreign Law Claims Raise a Substantial Federal Question.
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`Even if this Court’s choice of law analysis would not itself create a substantial and
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`disputed federal issue, and even if that analysis would result in application of foreign law rather
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`than the Copyright Act to plaintiffs’ claims, federal question jurisdiction would still exist here if a
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`substantial and disputed federal issue were embedded in plaintiffs’ foreign law claims. The Court
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`concludes that such an issue is present here because one or more of plaintiffs’ claims will require
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`applying Copyright Act ownership principles to determine whether each of the works at issue is
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`owned by Mr. Sepi or by Whyte Monkee—a conflict necessarily raised by plaintiffs’ complaint.
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`Under each of the foreign laws at issue, an essential element of a copyright claim is
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`copyright ownership. But a simple assertion of ownership does not on its own establish federal
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`question jurisdiction, even if that ownership was established pursuant to federal law. See Topolos
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`v. Caldewey, 698 F.2d 991, 994 (9th Cir. 1983); Cordero v. McGonigle, No. 13-cv-0198 2013
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`U.S. Dist. LEXIS 182243, at *9-10 (C.D. Cal. Jan. 3, 2014) (“The instant case is distinguishable
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`from JustMed, as the work-for-hire doctrine does not need to be applied. This is not a case where
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`the plaintiff has pled that he is the owner of a copyright because of the work-for-hire doctrine.
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`Rather, Cordero’s complaint only states that he was the author….”). Where ownership depends on
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`an application of the Copyright Act’s work-for-hire doctrine, however, that federal issue is
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`sufficient to establish federal question jurisdiction under binding Ninth Circuit precedent.
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`JustMed, 600 F.3d at 1124–25 (“Because ownership normally vests in the author of a work,
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`JustMed would have ownership only under the Copyright Act’s work-for-hire doctrine …. Thus,
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`application of the work-for-hire doctrine is central to this appeal.”).
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`The question here is thus whether any of plaintiffs’ foreign-law claims require applying the
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`Copyright Act’s work-for-hire provisions. The work-for-hire doctrine is potentially relevant
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`because plaintiffs claim that Mr. Sepi created some of the works at issue “on his own” but created
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`others “under the auspices” of Whyte Monkee and that some of the works “included authorship
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`designations indicating that Whyte Monkee … was the author.” Compl. ¶¶ 8, 10. Further, each of
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`plaintiffs’ foreign claims asserts that both “plaintiffs are the legal authors of their … works.” E.g.,
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`Compl. ¶ 21. Because it is not legally possible that Mr. Sepi and Whyte Monkee are both legal
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`authors of the works at issue (they do not, for example, purport to be co-authors), any court
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`considering plaintiffs’ claims will necessarily have to determine which of the two plaintiffs is the
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`legal author and owner of each copyrighted work.
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`Accordingly, even if plaintiffs are pursuing this lawsuit against Netflix cooperatively, and
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`even if Netflix has no reason to dispute ownership as between the two plaintiffs, the authorship
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`and ownership of each of the works present a necessarily disputed issue that is apparent on the
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`face of the complaint. The question then becomes how the foreign jurisdictions whose laws
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`plaintiffs have invoked would determine authorship and ownership of each work. If any of those
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`jurisdictions would apply U.S. law rather than local law to determine copyright ownership, then
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`the question of ownership as between Mr. Sepi and Whyte Monkee would require application of
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`the Copyright Act’s work-for-hire provisions, since Whyte Monkee, like JustMed, “would have
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`ownership only under the Copyright Act’s work-for-hire doctrine.” JustMed, 600 F.3d at 1124
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`(emphasis added).
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`At the Court’s request, Netflix provided nearly a hundred pages of supplemental briefing
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`and foreign case law and statutes showing that at least some of the countries under whose
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`copyright laws plaintiffs are pursuing claims determine copyright ownership using the law of the
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`country where the work originated. For example, Netflix points to several French cases applying
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`the law of the country of origin to determine ownership. See, e.g., Cour d’appel [CA] [regional
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`court of appeal] Paris, Feb. 23, 2021, 19/09059 (“[W]ith regard to the existence and ownership of
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`Case 5:23-cv-03438-PCP Document 41 Filed 04/16/24 Page 7 of 8
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`copyright, … the Belgian law … on copyright is applicable to the dispute.”) (translation); Cour de
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`cassation [Cass.] [supreme court for judicial matters] 1e civ., Apr. 7 1998, 96-13.712 (rejecting
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`appeal where lower court applied “Swedish law … for the definition of copyright ownership”)
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`(translation).2
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`Based on these authorities, it is apparent that even if foreign law applies to all of plaintiffs’
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`claims, the Court will have to apply U.S. federal law to determine copyright ownership with
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`respect to at least some of those claims. And under the federal law of copyright ownership, Whyte
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`Monkee can only claim authorship (and thereby ownership) through an application of the work-
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`for-hire provisions of the Copyright Act. See 17 U.S.C. § 201(b). This application of the
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`Copyright Act’s work-for-hire doctrine is thus a central federal issue raised by plaintiffs’
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`complaint that is sufficient to establish the Court’s federal question jurisdiction. See JustMed, 600
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`F.3d at 1124. To the extent any of plaintiffs’ claims do not raise a federal question, the Court can
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`properly exercise supplemental jurisdiction over those claims since they are part of the same case
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`or controversy. See 28 U.S.C. § 1367.
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`B.
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`Diversity Jurisdiction
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`Netflix separately argues that this Court has diversity jurisdiction over this action. The
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`parties do not dispute that they are completely diverse, although they do contest the amount in
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`controversy. Plaintiffs also argue that Netflix’s removal was improper under the forum-defendant
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`rule, which provides that an action otherwise removable only on the basis of jurisdiction “may not
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`be removed if any of the parties in interest properly joined and served as defendants is a citizen of
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`the State in which such action is brought.” 28 U.S.C. § 1441(b)(2). It is undisputed that Netflix is a
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`citizen of California and therefore subject to the “forum defendant” exception to removal.
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`Netflix argues that removal was proper because it removed the case before it was “properly
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`joined and served.” The Ninth Circuit has not yet decided whether such “snap” removals are
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`permissible, and district courts are divided. See Casola v. Dexcom, Inc., ––– F.4th ––––, 2024 WL
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`2 Common law countries like the United Kingdom and New Zealand would at the very least apply
`choice-of-law tests that, like California’s, would require considering U.S. law. See, e.g., Private
`International Law (Miscellaneous Provisions) Act 1995 § 11(2) (U.K.); Private International Law
`(Choice of Law in Tort) Act 2017 s 8(2) (N.Z).
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`Case 5:23-cv-03438-PCP Document 41 Filed 04/16/24 Page 8 of 8
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`1547021, at *2 n.1 (9th Cir. Apr. 10, 2024). The Court is skeptical that the removal statute should
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`be construed to permit snap removal. Compare 28 U.S.C. § 1441(b)(2) (considering the “parties in
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`interest properly joined and served as defendants” without expressly specifying whether proper
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`joinder and service must already have occurred) with 28 U.S.C. § 1446(b)(2)(A) (requiring
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`consent to removal from “all defendants who have been properly joined and served”) (emphasis
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`added). The Court need not decide that issue, however, because the Court has federal question and
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`supplemental jurisdiction over plaintiffs’ claims.
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`IV. Conclusion
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`Because this case raises a question of federal law, the Court has subject matter jurisdiction
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`under 28 U.S.C. § 1331. Plaintiffs’ motion to remand is denied.
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`Pursuant to the parties’ stipulation, Dkt. No. 12, Netflix’s deadline to respond to the
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`complaint is May 17, 2024. Plaintiffs’ deadline to respond to any motion to dismiss or forum non
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`conveniens motion is June 14, 2024, and Netflix’s reply deadline is July 5, 2024. The Initial Case
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`Management Conference is reset to October 3, 2024.
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`IT IS SO ORDERED.
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`Dated: April 16, 2024
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`P. Casey Pitts
`United States District Judge
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