Documentary filmmakers who use unlicensed video clips can breathe a little easier, after an appellate panel reversed itself Thursday in a closely watched copyright case involving Netflix‘s “Tiger King” series.
A three-judge panel of the 10th Circuit Court of Appeals ruled that the filmmakers’ use of a 66-second clip from a character’s funeral was sufficiently transformative to qualify for “fair use” protection.
The court thus upheld a lower court decision throwing out a videographer’s lawsuit against Netflix and the filmmakers.
The same panel reached the opposite conclusion two years ago, raising alarms in the documentary community. Documentarians often rely on archival footage, and they usually obtain permission from copyright holders to include it in their films. But sometimes they cannot reach a deal to license the footage, or cannot find whoever shot it, leading them to claim “fair use.”
In this case, videographer Tim Sepi sued, accusing Netflix of taking his footage without compensation.
In its initial ruling in 2024, the panel relied on the Supreme Court’s ruling in a case involving an Andy Warhol image of Prince. The ruling narrowed the “fair use” defense by holding that Warhol’s work was not sufficiently transformative of an underlying photograph to evade a copyright claim.
Interpreting that ruling, the Denver-based appellate panel initially concluded that Netflix and the filmmakers had likewise not “transformed” or commented on Sepi’s footage, but rather had simply taken it because they wanted to use it.
“Defendants do not appear to have a sufficiently compelling justification for their use,” wrote Chief Judge Jerome Holmes. “Defendants simply wished to use Mr. Sepi’s Funeral Video to convey a new meaning or message.”
That decision caused a stir among filmmakers, and prompted the Motion Picture Association, the International Documentary Association, Film Independent, and others to petition the court to reconsider.
Two years later, after additional briefing and argument, the court decided it was wrong. In so doing, the court relied on cases from the 9th and 4th circuits that have allowed documentary makers to use copyrighted clips without permission to make some broader point.
“‘Tiger King’s use of the Funeral Video clips is classic documentary-style borrowing,” Holmes concluded. “The difference between the purposes animating Defendants’ use of the excerpted material and Mr. Sepi’s use of the Funeral Video is significant.”
In its initial ruling, the panel also noted that Netflix had profited handsomely from the series, and found that such “commerciality” weighed against a fair use finding. After reconsidering, the judges concluded that while the series was undoubtedly a hit, the 66-second clip represented a tiny fraction of it: “(T)here is no indication that Defendants gained materially from the commercial exploitation of the copyrighted material itself.”
The revised ruling brings the 10th circuit into agreement with the 9th and 4th circuits without the Supreme Court having to revisit the Warhol case in order to resolve the dispute.
