Back in 2022, the U.S. Supreme Court issued an important fair use ruling in Warhol v. Goldsmith—holding that Warhol's use of Goldsmith's Prince photograph was not fair use. Our firm co-authored an amicus brief in that case on behalf of documentary filmmakers—warning that if the ruling is applied to documentaries, filmmakers will not be able to rely safely on the fair use doctrine to justify their use of pre-existing copyrighted material.

We have been closely monitoring the court dockets to see how courts are analyzing fair use in the wake of the Warhol ruling—especially as applied to documentary films. This week’s Tenth Circuit decision in Whyte Monkee Productions et al. v. Netflix, Inc. et al. (the “Tiger King” copyright case) provides a first glimpse.

Many of us watched “Tiger King” during the first months of the pandemic—the seven-part documentary series about an eccentric Oklahoma zookeeper named Joe Exotic. The series included short clips from eight videos that were filmed by plaintiff Timothy Sepi. Sepi sued Netflix for copyright infringement, contending that the clips were used without his permission. The federal trial court held that Sepi did not own the copyrights in seven of the videos, because they were works for hire (Sepi shot the clips for Joe Exotic TV). Although Sepi owned the copyright in the eighth clip—a video of Exotic’s husband’s funeral—the trial court found that Netflix’s use of that clip was fair use. 

On appeal, the Tenth Circuit reversed the trial court’s fair use ruling. Citing Warhol, the Tenth Circuit held that the first fair use factor—the “transformative” factor—weighed in favor of Sepi, because defendants did not comment on Sepi’s video itself, but rather used Sepi’s clip to comment on Joe Exotic’s “megalomania, even in the face of tragedy.” The Tenth Circuit reasoned: 

Warhol has deemed such a use to not be sufficiently transformative.  Indeed, in Warhol, Andy Warhol himself targeted a character—the artist, Prince—but the Court determined that his work was not sufficiently transformative in part because Mr. Warhol did not target the original work—viz., Lynn Goldsmith’s photograph of Prince. 

Relying further on Warhol, the Tenth Circuit held that the commercial nature of Netflix’s use of Sepi’s clip also weighed against a fair use finding. 

As to the other factors, the Tenth Circuit held that the second and third factors weighed in favor of defendants, because Sepi’s clip was “more factual than creative” and only a small portion was used. The court declined, however, to rule on the fourth factor (the effect of defendants’ use on the potential market for Sepi’s clip) because it found that the factual record had been inadequately developed. 

By declining to rule on the fourth factor, the Tenth Circuit punted on the question of the overall sufficiency of the fair use defense. Thus it remains to be seen how the ultimate balancing of the four factors will play out. But the Tenth Circuit's ruling on the first factor—which is often outcome-determinative of fair use—validates our concerns regarding the impact of the Warhol decision on the ability of filmmakers to rely on this defense. We will follow this case closely and keep you posted.