Warhol Does Not Require Targeting: Brief Documentary Use of Public Factual Footage Can Be Transformative Fair Use

Introduction

In Whyte Monkee Productions v. Netflix, the Tenth Circuit affirmed summary judgment for Netflix, Inc. and Royal Goode Productions, LLC in a copyright dispute arising from the Netflix series Tiger King: Murder, Mayhem and Madness. Plaintiffs Whyte Monkee Productions, LLC and Timothy Sepi claimed ownership of eight videos filmed around Joe Exotic’s Oklahoma zoo and alleged that Netflix and Royal Goode used clips without permission.

The appeal presented two principal issues: whether seven videos filmed while Sepi worked at the zoo were works made for hire, and whether the use of a short clip from an eighth video—the funeral of Travis Maldonado—was protected by fair use. The court’s most significant fair-use holding is that, after Andy Warhol Foundation for the Visual Arts, Inc. v. Goldsmith, a documentary need not “target” or comment on the original work itself to make transformative fair use of a brief factual clip.

Summary of the Opinion

The Tenth Circuit affirmed the district court in full.

  • First seven videos: The court did not reach the merits of the work-made-for-hire question. Instead, it held that Plaintiffs advanced a new theory on appeal—that Sepi was only a tour videographer and that the challenged footage was outside that role. Because this theory was not raised below and Plaintiffs did not argue plain error, it was waived.
  • Funeral Video: The court held that Netflix and Royal Goode’s use of approximately sixty-six seconds of a nearly twenty-four-minute funeral video was fair use. All four statutory factors favored Defendants.

The court emphasized that the clip was used not as a substitute for the funeral recording, but as part of a documentary-style commentary on Joe Exotic’s character, showmanship, and the “big cat” world. The use was brief, factual, publicly disclosed, and unlikely to harm any cognizable market.

Analysis

Precedents Cited

Preservation, waiver, and summary judgment

The court relied on Jacks v. CMH Homes, Inc., Campbell v. City of Spencer, Schrock v. Wyeth, Inc., United States v. Leffler, United States v. Lamirand, and Richison v. Ernest Grp., Inc. to enforce the Tenth Circuit’s strict rule that arguments not raised in the district court are forfeited, and if no plain-error argument is made on appeal, they are treated as waived.

The court also cited Franks v. Nimmo for the sham-affidavit doctrine, under which contradictory later testimony may be disregarded when it appears designed to manufacture a factual dispute. Although the appellate court resolved the first seven videos primarily on waiver grounds, this doctrine explained the district court’s treatment of Sepi’s changed testimony.

For the summary judgment standard, the court cited Punt v. Kelly Servs., Peterson v. Martinez, Scott v. Harris, Anderson v. Liberty Lobby, Inc., SEC v. GenAudio, Inc., James v. Wadas, Baca v. Sklar, and Potts v. Davis Cnty.. These cases framed the inquiry: whether a genuine dispute of material fact exists when the record is viewed in the nonmovant’s favor.

Core fair-use precedents

The court’s fair-use analysis centered on Campbell v. Acuff-Rose Music, Inc., Harper & Row Publishers, Inc. v. Nation Enters., Google LLC v. Oracle Am., Inc., Sony Corp. of Am. v. Universal City Studios, Inc., and Andy Warhol Foundation for the Visual Arts, Inc. v. Goldsmith.

Campbell v. Acuff-Rose Music, Inc. supplied the modern transformative-use framework: courts ask whether the secondary use merely supersedes the original or instead adds a further purpose or different character. Andy Warhol Foundation for the Visual Arts, Inc. v. Goldsmith refined that inquiry by warning that “new meaning or message” alone is insufficient and that courts must focus on the specific challenged use, its objective purpose, and the risk of market substitution.

The Tenth Circuit read Warhol as limiting overly broad transformation arguments but not as requiring the secondary user to comment on the original work in every case. The court relied heavily on Warhol’s statement that “targeting is not always required.”

Documentary and archival-use precedents

The court drew support from documentary and historical-use cases including Bouchat v. Balt. Ravens Ltd. P'ship, Elvis Presley Enters., Inc. v. Passport Video, Bill Graham Archives v. Dorling Kindersley Ltd., Brown v. Netflix, Inc., Kelley v. Morning Bee, Inc., Monbo v. Nathan, Red Label Music Publ'g, Inc. v. Chila Prods., Hofheinz v. A & E Television Networks, and Monster Commc'ns, Inc. v. Turner Broad. Sys., Inc..

These cases showed that documentaries are not automatically protected, but they often make fair use when they incorporate limited archival material for commentary, history, criticism, or context. Bouchat v. Balt. Ravens Ltd. P'ship was especially influential because it approved fleeting use of a copyrighted logo in historical NFL videos. By contrast, Elvis Presley Enters., Inc. v. Passport Video illustrated the boundary: a documentary may lose fair-use protection when it uses copyrighted clips for their entertainment value rather than for historical reference or commentary.

Second, third, and fourth factor precedents

For the second factor, the court relied on Harper & Row Publishers, Inc. v. Nation Enters., Campbell v. Acuff-Rose Music, Inc., Hustler Mag., Inc. v. Moral Majority Inc., Brammer v. Violent Hues Prods., LLC, and Swatch Group Mgmt. Servs. v. Bloomberg L.P.. These authorities supported two conclusions: factual works receive thinner protection than highly creative works, and “published” status for fair-use purposes focuses on whether the work has already been made public, not only on the technical Copyright Act definition.

For the third factor, cases such as Kelly v. Arriba Soft Corp., SOFA Ent., Inc. v. Dodger Prods., Inc., Maxtone-Graham v. Burtchaell, and New Era Publ'ns Int'l, ApS v. Carol Publ'g Grp. supported the conclusion that using only what is reasonably necessary for a transformative purpose favors fair use.

For the fourth factor, the court cited Campbell v. Acuff-Rose Music, Inc., Authors Guild v. Google, Inc., Google LLC v. Oracle Am., Inc., Dr. Seuss Enters., L.P. v. ComicMix LLC, Leibovitz v. Paramount Pictures Corp., Hachette Book Grp., Inc. v. Internet Archive, Castle Rock Ent., Inc. v. Carol Pub. Grp., Inc., and Twin Peaks Prods., Inc. v. Publ'ns Int'l, Ltd.. These cases framed market harm as a substitution inquiry and clarified that a defendant need not disprove speculative derivative markets the plaintiff has not identified.

Legal Reasoning

1. The seven employment-period videos: waiver, not a new work-for-hire rule

The district court held that seven videos were works made for hire because Sepi created them within the scope of his employment. On appeal, however, Plaintiffs shifted theories. Below, they argued that the videos were made for Whyte Monkee Productions rather than the Park. On appeal, they argued that Sepi was only employed to record tours and that the disputed videos exceeded that role.

The Tenth Circuit treated this as a new, incompatible theory. Because Plaintiffs failed to request plain-error review, the court deemed the argument waived. Thus, the affirmance as to these seven videos is procedurally important but does not create a broad substantive holding on the scope of work-made-for-hire doctrine.

2. Fair use of the Funeral Video

The court applied all four statutory factors under 17 U.S.C. § 107.

Factor One: Purpose and character of the use

The first factor favored Defendants. The court found that Tiger King used the funeral footage for a different objective purpose than the original video. Sepi’s video functioned as a remembrance of Travis Maldonado’s funeral. Netflix and Royal Goode used a short excerpt to comment on Joe Exotic’s behavior, theatricality, and personality within a broader documentary narrative.

Crucially, the court rejected Plaintiffs’ argument that Warhol requires commentary on the copyrighted work itself. Targeting the original may be necessary for parody or direct criticism, but not for every transformative use. Documentary use may be justified more broadly when it advances commentary, education, or historical explanation.

Although Tiger King was commercial, the court focused on whether Defendants commercially exploited the Funeral Video itself. Because the excerpt was brief and not the source of the series’ commercial value, commerciality did not outweigh the transformative character of the use.

Factor Two: Nature of the copyrighted work

The Funeral Video was factual and minimally creative. Sepi largely placed a camera on a tripod and recorded real events. The court also held that the video had already been publicly disclosed because it was livestreamed and left on YouTube. For fair-use purposes, the relevant concern is the author’s right to control the first public appearance of the work; that right had already been exercised.

Factor Three: Amount and substantiality used

Defendants used about sixty-six seconds of a nearly twenty-four-minute video. The court acknowledged that qualitative importance matters, but concluded that the excerpt was no more than reasonably necessary to serve the documentary purpose. Even if the selected portions were unusual or notable, the quantity and context favored fair use.

Factor Four: Market effect

The fourth factor also favored Defendants. Tiger King was not a substitute for watching the funeral video. Plaintiffs also failed to identify any protectible derivative market that Defendants’ use harmed. The court held that while fair use is an affirmative defense, a defendant need not negate hypothetical derivative markets that the copyright owner never identifies.

The court also noted that Sepi had never licensed or commercially exploited the Funeral Video. That fact, combined with the transformative use and limited copying, supported the absence of cognizable market harm.

Impact

This decision is significant for documentary filmmakers, streaming platforms, copyright owners, and litigants.

  • For documentaries: The opinion provides strong protection for brief, contextual use of archival footage, especially where the footage is factual, publicly available, and used for commentary or narrative explanation.
  • After Warhol: The decision clarifies that Warhol does not eliminate documentary fair use or impose a universal “targeting” requirement. A secondary use can be transformative because it serves a different documentary purpose, even if it does not critique the original footage as a work.
  • For copyright owners: Plaintiffs must identify actual or plausible derivative markets and show more than speculative licensing harm. Merely asserting that a defendant could have paid for a license is not enough.
  • For online publication: Livestreaming or posting a work on YouTube may weaken an argument that the work is unpublished for fair-use purposes, even if it is not “published” under the technical statutory definition in 17 U.S.C. § 101.
  • For appellate practice: The opinion reinforces that a party cannot change theories on appeal without preserving the issue or arguing plain error.

Complex Concepts Simplified

  • Fair use: A defense allowing limited use of copyrighted material without permission when the use serves purposes such as criticism, comment, news reporting, teaching, scholarship, or research.
  • Transformative use: A use that serves a different purpose or character from the original, rather than acting as a substitute for it.
  • Targeting: Directly commenting on, criticizing, or parodying the original work. This case holds that targeting can help justify copying, but is not always required.
  • Derivative market: A market for authorized adaptations or recast versions of the original work. A plaintiff must identify such a market before claiming it was harmed.
  • Work made for hire: A work created by an employee within the scope of employment, typically owned by the employer.
  • Waiver on appeal: If a party raises a new argument for the first time on appeal and does not seek plain-error review, the appellate court may refuse to consider it.
  • Sham-affidavit doctrine: A rule allowing courts to disregard later testimony that contradicts earlier sworn testimony when the contradiction appears designed to create a false factual dispute.

Conclusion

Whyte Monkee Productions v. Netflix is an important Tenth Circuit fair-use decision for the post-Warhol era. It confirms that commercial documentaries may make fair use of brief archival clips when the use is objectively different, contextually necessary, and unlikely to substitute for the original.

The central takeaway is clear: documentary fair use survives Warhol, and transformative use does not always require targeting the original work itself.