Documentary filmmakers using unauthorized video clips may have some relief after an appeals board reversed Thursday in a closely watched copyright case surrounding Netflix’s “Tiger King” series.
A three-judge panel of the 10th Circuit Court of Appeals ruled that the filmmaker’s use of a 66-second clip of a character’s funeral was sufficiently transformative to qualify for “fair use” protection.
The court therefore upheld the lower court’s decision dismissing the videographer’s lawsuit against Netflix and the filmmaker.
The same committee came to the opposite conclusion two years ago, sounding the alarm in the documentary world. Documentary makers often make use of archival footage and usually obtain permission from the copyright holder to include it in their films. However, in some cases, an agreement cannot be reached to license the footage, or it is unclear who took the footage, resulting in a claim of “fair use.”
In this case, videographer Tim Sepi sued Netflix for filming him without compensation.
In its first decision in 2024, the commission relied on the Supreme Court’s decision in the case over Andy Warhol’s portrait of Prince. The decision narrowed the scope of the “fair use” defense, determining that Warhol’s work did not sufficiently transform the underlying photographs to avoid copyright claims.
Interpreting the ruling, the Denver-based appeals panel initially concluded that Netflix and the filmmakers alike did not “transform” or comment on Sepi’s footage, but simply filmed it because they wanted to use it.
Chief Justice Jerome Holmes said: “The defendants do not appear to have a sufficiently convincing justification for their use.” “The defendants simply wanted to use Mr. Sepi’s funeral video to convey a new meaning and message.”
The decision caused a stir among filmmakers, with the Motion Picture Association of Japan, the International Documentary Association and Film Independent petitioning the court for reconsideration.
Two years later, after additional explanation and argument, the court found that to be wrong. In doing so, the court made a broader argument, building on cases from the Ninth and Fourth Circuits that allowed documentary producers to use copyrighted clips without permission.
“‘Tiger King’s use of the funeral video clip is a borrowing of classic documentary style,'” Holmes concluded. “The difference in the purpose of the animation between Defendant’s use of the excerpt material and Mr. Sepi’s use of the funeral video is significant.”
In its initial ruling, the commission also noted that Netflix had made significant profits from the series, finding that such “commercial nature” contradicted a finding of fair use. Upon review, the judges concluded that while the series was undoubtedly a hit, the 66-second clip represented only a small portion of it, and that there was “no indication that Defendants substantially profited from the commercial exploitation of the copyrighted material itself.”
The revised decision eliminates the need for the Supreme Court to reconsider the Warhol case to resolve the dispute, and the 10th, Ninth, and Fourth Circuits agree.
