Tiger King and the Unpredictability of Fair Use

When it comes to fair use, there are several things that most people need to understand but don’t.

First, fair use is not something that you declare or proactively try to claim. Fair use is an affirmative defense that must be raised by a defendant in a lawsuit (or CCB claim). Ultimately, a judge and/or jury will decide what is and is not fair use, not either of the parties.

Second, the factors that govern fair use are deliberately vague and open to interpretation. Two reasonable people can look at the same set of facts and come to different conclusions about whether or not something is fair use.

Finally, fair use is not static. Ever since fair use was codified in the Copyright Act of 1976, there have been a slew of court cases and decisions that have altered the course of the law. That includes the 2023 Warhol decision, which changed the landscape of fair use overnight.

No case illustrates these facts better than the recent decision by the Tenth Circuit Court of Appeals in a lawsuit over the Tiger King documentary.

Not only did the appeals court overturn its own earlier decision, but the case brought together the Motion Picture Association (MPA) and the Electronic Frontier Foundation (EFF), two organizations that are more often at odds with each other, to argue on the same side.

It’s a tale that’s almost as outrageous as its source material. However, it’s an extremely important one, especially for documentary filmmakers.

As such, we have to pretend like it’s March 2020 and revisit the bizarre fad that swept the country while it was in lockdown.

Background of the Case

Tiger King: Murder, Mayhem, and Madness was the seven-part Netflix documentary that debuted on Netflix in March 2020. The series focused on the life of Joe Exotic, the operator of the G.W. Zoo in Oklahoma, and his long-running feud with Carole Baskin, the founder of Big Cat Rescue in Florida.

In Episode 5, the series featured a 66-second clip of a funeral for Exotic’s husband, Travis Maldonado. However, the clip was filmed by Timothy Sepi, a videographer who had worked with Exotic in the past. Sepi owned the rights to the footage and sued Netflix for copyright infringement.

However, the lower court tossed the case, ruling that the use of the clip was fair use. Sepi appealed that decision to the Tenth Circuit Court of Appeals, which overturned the lower court’s decision in May 2024. According to the court, the use of the clip was not transformative enough to be considered fair use.

Though the case was originally remanded back to the lower court, Netflix almost immediately asked for the court to reconsider its decision. It was joined by the Motion Picture Association, the International Documentary Association, Film Independent, and the Electronic Frontier Foundation, all of which filed or joined amicus briefs in support of Netflix.

The Tenth Circuit Court of Appeals agreed to rehear the case, and a second round of oral arguments was held in July 2024. However, after that, things got quiet as the case remained under consideration for a year and a half.

Now that the appeals court has issued a replacement decision, this time affirming the lower court’s decision.

The new decision brings the Tenth Circuit in line with other circuits, including the Ninth and the Fourth, which have both ruled similarly when dealing with clips used in documentaries.

But this begs one question: What changed?

A New Day, a New Decision

To understand the 2004 decision, we have to first understand the Warhol decision from one year prior.

That case involved a lawsuit between photographer Lynn Goldsmith and the estate of Andy Warhol. In 1981, Goldsmith took a series of photographs of Prince and, in 1984, licensed one of those images to Vanity Fair magazine, who had Warhol create the iconic painting based on it.

However, after Prince’s death in 2017, it was revealed that Warhol had created a whole series of paintings based on Goldsmith’s photograph. The estate sued Goldsmith, seeking a judgment of non-infringement. Goldsmith counter-sued for copyright infringement.

At the Supreme Court, the case centered around the issue of “transformativeness.” The Warhol painting was ruled not to be transformative since it was merely a representation of the artist. It offered no commentary or criticism of the original photograph or the subject and served the same function as the original photo, to represent Prince. The court also made it clear that transformativeness was not the dominant factor in determining fair use, relegating it to just part of the first factor.

In the Tiger King case, the 2024 decision by the Tenth Circuit Court of Appeals leans heavily on the Warhol decision. It ruled that the usage of the clip was not transformative under the law and, accordingly, was not fair use. The reason for this decision was that the use of the clip didn’t comment on the original footage or the subject.

The outcry against the decision was immediate and came from all across the copyright spectrum. The panel almost immediately held a new round of oral arguments on the case.

In this latest decision, the court ruled that the use was transformative. The judges simply changed the definition of transformativeness, focusing more on the intent of the documentary, namely to highlight Joe Exotic’s character, and how different that was from the original work’s intent of preserving the funeral.

Other factors also favored Netflix. The 66-second clip was roughly 2.58% of the episode and 0.35% of the entire series. It also represented less than 5% of the original footage. The court also ruled that the original video was factual, not artistic, and that Sepi had already distributed the footage via Exotic’s streaming service, giving him first publication.

When it was all said and done, the court ruled that Netflix’s use of the clip was protected under the fair use doctrine, likely bringing an end to this case.

What Does This Decision Mean?

As Aaron Moss at Copyright Lately put it, this decision is likely to be required reading for documentary filmmakers. (Note: I highly recommend his coverage for a more in-depth analysis of the ruling.) This ruling speaks directly to them in more ways than one.

For everyone else, this decision is still important, especially in the context of the Warhol decision.

The Warhol decision was, above all else, a major shakeup of fair use. Transformativeness, an idea that was sacrosanct for decades, was now narrowed to give more weight to other factors and the other elements of the first factor.

Nobody really knows what this means for the future. One of the groups most worried, understandably, was documentary filmmakers.

What this decision does is reduce the requirement of a secondary use to “target” the original work. The original 10th Circuit decision found that the use of the clip didn’t target the original work or the subject of that video. Instead, it was meant to highlight Joe Exotic’s character and further the documentary’s narrative.

However, the second ruling found that “targeting” wasn’t necessary as the secondary use served a different purpose than the original work. It also took a very limited amount of material and did little, if any, harm to the market for the original work.

In short, prior to the Warhol decision, transformativeness was the dominant factor in determining fair use. It was so dominant that, in many cases, it might as well have been the only factor. The Warhol decision was an attempt to rein in that mentality and give more weight to the other factors.

However, the original 10th Circuit decision went to the other extreme. It ignored how broadly transformative the use was simply because it didn’t “target” the original work.

The second decision, however, finds a middle ground and brings it more in line with what the Supreme Court likely intended. Transformativeness still matters, especially in the broader sense of creating a fundamentally different work. It just isn’t the only factor.

This decision highlights that by not only examining transformativeness more deeply, but also examining the other factors more closely, creating a much more balanced review.

That, in turn, is what most people should take away from this decision.

Bottom Line

Any time that both the EFF and the MPA are sounding alarm bells about a decision, it’s probably worth reexamining. I agree that the court did the right thing in rehearing the decision and, after examining their reasoning, think that they largely got it right the second time around.

The first ruling was an overreaction to the Warhol decision. The court overcorrected and ruled that an activity that had been relatively solidly considered fair use for decades was not. This could have set up a circuit split and further challenges.

If we are going to have a fair use system, and not a more limited fair dealing system like in other countries, then this type of use should be protected. Short clips used as part of a documentary are very much in line with the stated goals of fair use.

Still, I do understand the overcorrection. The Warhol ruling was still fresh and very few rulings examined how it changed fair use.

But the goal of that ruling wasn’t to eliminate transformativeness completely or reduce it to just direct parody, commentary, and criticism. It was to rebalance it with the other factors. This is what the second decision does much better.

The only sad part is that it took two tries and two years to get there.