On April 30, 2026, the United States Court of Appeals for the Tenth Circuit issued an opinion affirming summary judgment in favor of Defendants Netflix, Inc. and Royal Goode Productions, LLC and holding that the use of short clips from copyrighted videos in the hit documentary series Tiger King: Murder, Mayhem and Madness (“Tiger King”) did not constitute copyright infringement.
Background
Timothy Sepi was hired in 2015 to work at the Gerald Wayne Interactive Zoological Park (the “Park”), which was operated by Joseph Maldonado-Passage (also known as Joe Exotic). The Park housed exotic animals and had a web series called Joe Exotic TV. Part of Mr. Sepi’s job was to photograph and film park tours. Mr. Sepi also performed filming and editing for Joe Exotic TV. Mr. Sepi terminated his employment relationship with the Park in 2016.
In 2020, Netflix and Royal Goode released the Tiger King series, which included seven videos that Mr. Sepi filmed while employed by the Park. Tiger King also included an eighth video documenting the funeral of Joe Exotic’s husband that Mr. Sepi filmed after leaving the Park. After Tiger King was released, Mr. Sepi filed for and received copyright registrations for all eight videos and then sued Netflix and Royal Goode for copyright infringement.
The district court granted summary judgment for the defendants, holding that Mr. Sepi did not own the copyright for seven of the videos because they were works made for hire. It further held that the defendants’ use of the funeral footage was fair use and did not infringe upon Mr. Sepi’s copyright.
On appeal, the Tenth Circuit panel addressed two issues: (i) whether the seven videos filmed during Mr. Sepi’s employment were “works made for hire” under the Copyright Act, and (ii) whether the use of the funeral video qualified as fair use. The panel ruled against the plaintiffs on both issues.
Analysis
On the first issue, the Tenth Circuit held that the plaintiffs had waived their challenge to the district court’s work-made-for-hire determination because they were advancing a new argument on appeal. For the first time, plaintiffs argued that Mr. Sepi’s scope of employment as a tour videographer did not extend to cinematography or film editing conducted on his own time. The panel found the new theory incompatible with the argument presented below and held plaintiffs waived the argument. Accordingly, the court affirmed the district court’s grant of summary judgment as to the first seven videos.
On the second issue, the panel conducted an extensive fair use analysis of the Funeral Video and concluded that all four statutory factors under 17 U.S.C. § 107 favored Netflix.
As to the first fair use factor—purpose and character of the use—the panel found that Netflix’s use of approximately sixty-six seconds of the nearly twenty-four-minute Funeral Video was significantly transformative. While Mr. Sepi created the Funeral Video as a remembrance of Mr. Maldonado, Netflix used excerpted clips to illustrate Joe Exotic’s purported megalomania and showmanship. The panel emphasized that this was “classic documentary-style borrowing.” While acknowledging that Tiger King had an undeniable commercial purpose, the panel cautioned that this is not dispositive and the focus is on the “commercial exploitation of the copyrighted work itself, not the commercial nature of the secondary work as a whole.” The panel found that the commercialism of the use did not “loom large” given the insubstantial nature of the borrowing because it could not be said that the success of the Tiger King was due to its use of the Funeral Video—the clip comprised only 2.58% of Episode Five and 0.35% of the entire series.
On the second factor—the nature of the copyrighted work—the panel found the Funeral Video to be factual rather than creative, noting that Mr. Sepi simply placed a camera on a tripod and left it running without directing or arranging the events depicted. The panel also rejected the plaintiffs’ argument that the video was “unpublished,” reasoning that the relevant inquiry focuses on whether a work has been disclosed or disseminated—which it had, through livestreaming and posting on YouTube—and not on the statutory definition of “publication.”
On the third factor—the amount and substantiality of the portion used—the panel found that defendants used a quantitatively insubstantial amount of the Funeral Video and took no more than was necessary for their transformative purpose.
On the fourth factor—market impact—the panel concluded that the plaintiffs failed to identify any protectible derivative market that could be harmed by defendants’ use. The panel further noted that Mr. Sepi had never licensed, sold, or otherwise commercially exploited any of his work, and the significantly transformative nature of defendants’ copying attenuated the likelihood of any cognizable market harm.
The panel ultimately affirmed summary judgment for the defendants on both issues.
This decision is notable for its thorough analysis of fair use in the documentary context following the Supreme Court’s decision in Andy Warhol Foundation for the Visual Arts, Inc. v. Goldsmith, 598 U.S. 508 (2023). The panel reinforced that documentary-style borrowing of short clips for purposes of education, social commentary, and criticism frequently qualifies as fair use—particularly when the use is insubstantial and serves a distinctly different purpose from the original.
The case is Whyte Monkee Productions, LLC v. Netflix, Inc., No. 22-6086. The opinion was authored by Chief Judge Holmes, with Judges Hartz and Carson concurring.
For questions about this legal alert, please contact a member of the Davis Graham Appellate Group.