Tenth Circuit Affirms Fair Use of Archival Footage in Tiger King Copyright Dispute

In Whyte Monkee Productions, LLC v. Netflix, Inc., No. 22-6086 (10th Cir. Apr. 30, 2026), the Tenth Circuit affirmed summary judgment in favor of Netflix and its production partner, holding that the documentary series Tiger King: Murder, Mayhem and Madness made fair use of approximately 66 seconds of funeral footage. The decision followed an unusual second round of briefing and oral argument — with participation by amici including the International Documentary Association and a group of copyright and media law professors — and addresses the application of the US Supreme Court’s 2023 decision in Andy Warhol Foundation for the Visual Arts, Inc. v. Goldsmith to the documentary use of archival material.

Background

Timothy Sepi worked as a videographer at Joe Exotic’s Oklahoma animal park. After leaving his employment, Sepi filmed a roughly 24-minute video of the funeral of Exotic’s late husband, Travis Maldonado, which Sepi livestreamed on the Joe Exotic TV YouTube page. Netflix’s Tiger King documentary series incorporated approximately 66 seconds of the funeral footage — roughly 2.6% of Episode Five and less than 0.4% of the series as a whole. The footage was used in the documentary to illustrate Exotic’s character and showmanship. Sepi and Whyte Monkee Productions sued for copyright infringement. The district court granted summary judgment to Netflix, finding that the use was fair.

In a 2024 panel opinion, the Tenth Circuit initially reversed the district court on the fair use question, concluding that Netflix used the footage to comment on Exotic rather than on the video itself, and that the defendants had not carried their burden on market harm. The panel subsequently vacated its own opinion, invited supplemental briefing on the application of Warhol to the documentary use of video footage — including from amici curiae representing the documentary community and copyright scholars — and heard a second round of oral argument.

The Tenth Circuit’s Holding on Rehearing

On rehearing, the court affirmed summary judgment in favor of Netflix, holding that all four fair use factors favored the defendants. 

• Purpose and Character of the Use: The court held that Netflix’s use of the funeral footage was “significantly transformative” because it served an “objectively different purpose to a significant degree.” Specifically, the documentary used the clip not as a memorial recording but as a “biographical anchor” to illustrate Exotic’s character and showmanship — even in the face of tragedy — and to comment on the milieu of big-cat breeders. Noting that only an insubstantial amount was copied, and that the use fit “comfortably within the mold of the use of snippets of archival material in documentaries,” the court concluded the first factor favored fair use despite Tiger King’s commercial nature. The court also rejected the plaintiffs’ argument that Warhol required the secondary use to “target” or comment directly on the copyrighted work itself. Instead, the court explained that justification for copying can be found “when the copying serves to critique, or otherwise comment on, the original, or its author, but can also be found in other circumstances, such as when the copying provides useful information about the original, or on other subjects.” The court emphasized, however, that this conclusion did not rest on classifying Tiger King as a documentary or on any categorical presumption in favor of documentary works.

• Nature of the Copyrighted Work: The court found that the funeral video was “more factual than creative,” noting it was a straightforward recording of a real event in which Sepi exercised extremely limited creative vision — placing a camera on a tripod and leaving it running. The court further held that the work had been made public through the YouTube livestream, which dissipated any concern about protecting the author’s right to control the first public appearance of his expression.

• Amount and Substantiality of the Portion Used: The court held that 66 seconds from a 24-minute video was quantitatively insubstantial, and that the portions used were not the “heart” of the work. 

• Market Effect: The court concluded that Tiger King was not a substitute for the funeral video and that the plaintiffs failed to identify any concrete, protectable derivative markets that were harmed. While acknowledging that the defendant bears the burden of proof on market impact as part of the fair use defense, the court held that a defendant need not disprove harm to hypothetical derivative markets that the plaintiff has not identified. The significantly transformative nature of the use further attenuated any cognizable market harm.

Why This Matters

This decision is notable for several reasons.

1. The court interprets Warhol’s “targeting” requirement narrowly. The initial 2024 panel opinion had been read by some in the documentary community as suggesting that Warhol required a secondary use to critique or comment on the copyrighted material itself to qualify for fair use protection under the first factor. The rehearing opinion rejects that reading, holding that documentary use of archival material to provide new commentary — including as a “biographical anchor,” “historical marker,” or to comment on “notable personalities and societal concerns” — can be sufficiently transformative even without direct commentary on the original work, so long as the use serves an objectively different purpose to a significant degree. However, the court cautioned that documentaries receive no categorical presumption of fair use and that each use must be assessed on its own facts.
2. The decision offers guidance on documentary use of archival material — but is fact-specific. The opinion provides a framework for analyzing the documentary use of third-party footage under Warhol, particularly where the use involves brief, incidental clips repurposed for biography, historical narrative, or social commentary. At the same time, the court’s analysis was closely tied to the specific facts before it — including the insubstantial quantity of footage used, its limited creative character, and the absence of any identified licensing market — and should not be read as a blanket endorsement of all documentary borrowing.
3. The opinion clarifies the burden framework for market harm. The court’s treatment of the fourth factor underscores that a plaintiff seeking to defeat a fair use defense must identify concrete, protectable derivative markets — not merely hypothesize that such markets may exist. At the same time, the court reaffirmed that fair use is an affirmative defense and that the defendant bears the overall burden of proof, including the obligation to bring forward favorable evidence about relevant markets.

Practical Takeaways

For content creators and platforms, the decision provides comfort that Warhol did not categorically alter fair use analysis for documentary-style works. Producers incorporating archival material should continue to use only what is necessary for their editorial purpose, ensure that the use serves a purpose distinct from the original, and be prepared to articulate the editorial justification for each clip’s inclusion. For rights holders, the decision underscores the importance of developing and documenting active licensing markets and identifying specific, protectable derivative markets when challenging a fair use defense. The opinion also confirms that the factual nature and limited creative character of a copyrighted work, combined with the transformative character of the secondary use, can be powerful factors in a fair use analysis — a dynamic that both content owners and users should consider in evaluating their positions.

The issues discussed above are only a subset of the copyright and content licensing questions raised by this decision. For additional guidance, please reach out to your AFS contact or one of the authors.