Elaborating on the application of the fair use doctrine in the documentary context, the US Court of Appeals for the Tenth Circuit affirmed summary judgment after determining that seven of the eight works at issue were works made for hire and that the defendant’s use of the eighth work constituted fair use under all four statutory factors. Whyte Monkee Productions, LLC v. Netflix, Inc., Case No. 22-6086 (10th Cir. Apr. 30, 2026) (Holmes, Hartz, Carson, JJ.)
The dispute arose from Netflix’s use of video footage in its documentary series Tiger King. The footage was filmed by Timothy Sepi, who later claimed copyright ownership through his company, Whyte Monkee Productions. Whyte alleged that Netflix infringed its copyrights by including eight videos in the series.
Netflix argued that the first seven videos were made for hire because Sepi created them while he was employed by the Greater Wynnewood Exotic Animal Park. The district court agreed, crediting evidence that filming was part of Sepi’s job responsibilities and noting significant inconsistencies between Sepi’s 2016 and 2021 deposition testimony regarding his employment and role in creating the footage.
The eighth video, which was the only one not created within the scope of Sepi’s employment, was a 24-minute recording of a funeral. Netflix used approximately 66 seconds of the funeral video in Tiger King. The district court agreed with Netflix that this was fair use. Whyte appealed.
Whyte advanced new arguments on appeal challenging the work made for hire status of the first seven videos. The new arguments differed meaningfully from those presented to the district court. The Tenth Circuit found that the new arguments were waived because Whyte failed to raise the theories below or argue for plain error on appeal. Thus, the Court declined to consider them and affirmed summary judgment as to the first seven videos.
The Tenth Circuit affirmed the district court’s ruling regarding the eighth video that all four fair use factors favored Netflix.
Factor one: Transformative use and justification
The Tenth Circuit’s analysis of the first factor (the purpose and character of the use) emphasized that the central question is whether the secondary use has a distinct purpose or character, not merely whether it adds new meaning. The Court explained that the original funeral video functioned as a memorial recording while Tiger King repurposed the footage to illustrate and comment on Joe Exotic’s personality, specifically his performative behavior and megalomania. That difference in purpose rendered the use transformative.
The Court clarified the role of “justification” and “targeting” in transformative use analysis. Where a secondary use has a sufficiently distinct purpose or character, no independent justification, such as parody or direct commentary on the original work, is required. Targeting the original work is necessary only where the secondary use does not otherwise establish meaningful transformativeness. This analysis tempers overly rigid interpretations of the Supreme Court’s Warhol v. Lynn decision and preserves flexibility for documentary and contextual uses.
The Court further determined that although Tiger King was a commercial work, the significant transformativeness of the use, combined with the limited duration of the clip (approximately 2.58% of the episode and less than 1% of the overall series), diminished the weight of commerciality.
Factor two: Nature of the work
The Tenth Circuit found that the funeral video was largely factual and minimally creative. Sepi had set up a stationary camera to record the event with only occasional panning or zooming. This thin level of creative expression favored fair use. The Court also rejected Whyte’s argument that the funeral video was unpublished. Because the video was livestreamed on YouTube and remained publicly accessible afterward, the Court concluded that the second factor, which focuses on prior public dissemination, favored fair use.
Factor three: Amount and substantiality of the material used in reference to the copyrighted work
The Tenth Circuit found that Netflix’s use of 66 seconds out of a 24-minute video was reasonable in relation to its transformative purpose, concluding that Netflix used no more footage than was reasonably necessary to convey its commentary on Joe Exotic’s behavior.
Factor four: Market effect
The Tenth Circuit found no evidence that Tiger King served as a substitute for the funeral video or harmed any legitimate licensing market. Whyte had never licensed the video and further failed to identify a cognizable derivative market. Reiterating settled law, the Court explained that speculative licensing markets for the very use at issue cannot defeat fair use.
Finding that all four statutory factors favored Netflix, the Tenth Circuit affirmed summary judgment for the defendants.
Practice note: This decision confirms that documentary filmmakers may incorporate brief contextualized clips of copyrighted works where the use serves a distinct narrative or commentary function and does not supplant the original. Post‑Warhol, a different purpose, not merely new meaning, remains the key inquiry for transformativeness.
