work made for hire Archives

Transformative documentary use, work made for hire doctrine defeat copyright claims

by Lisette Donewald | May 14, 2026 | Copyrights

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 [...]

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The Game of Life: Winner Gets Everything Except Attorneys’ Fees

by Connor S. Romm | Jul 13, 2023 | Copyrights

The US Court of Appeals for the First Circuit agreed with the trial court regarding the reasonableness of the plaintiff’s legal positions and found that the trial court did not abuse its discretion in denying the defendants, as the prevailing party, attorneys’ fees. The First Circuit determined that the positions advanced by the unsuccessful plaintiffs were not objectively unreasonable. Markham Concepts, Inc. v. Hasbro, Inc., Case Nos. 19-1927; 21-1957; -1958 (1st Cir. June 22, 2023) (Kayatta, Lipez, Thompson, JJ.)

The underlying case involved a copyright action concerning ownership rights to The Game of Life, a board game that has been widely popular since its launch in 1960. The Game of Life became the center of a long-standing dispute between its creators, Reuben Klamer and Bill Markham. Klamer, a toy developer, conceived the initial idea for the game and enlisted Markham to design and create the game prototype. Markham believed he deserved greater recognition for his contribution and felt the royalty he received was unfairly low.

In its previous ruling on the merits, the First Circuit affirmed the district court’s decision in favor of the Hasbro defendants (including Klamer). The Hasbro defendants then sought attorneys’ fees, which the district court denied. Hasbro appealed and moved for appellate attorneys’ fees.

Although both the district court and the First Circuit examined various factors, such as Markham’s motivations and the need for compensation or deterrence, the key factor for both courts in determining whether to award legal fees hinged on the reasonableness of Markham’s litigation arguments.

The merits of the underlying case revolved around the termination right provided by the Copyright Act of 1976 (1976 Act), which allows authors to terminate copyright grants after a certain period and thereby disentangle themselves from agreements made before the true value of their work became apparent. This right does not apply to works made for hire. In this instance, the issue of whether The Game of Life qualified as a work made for hire was determined under the Copyright Act of 1909 (1909 Act), as the game was created long before the 1976 Act took effect. Under the 1909 Act, Markham had to meet the “instance and expense” test, which treats contractors as employees of the party commissioning the work, thereby presuming copyright ownership in the latter. The district court held that The Game of Life was a work for hire because it was created at Klamer’s instance and expense.

Markham’s primary argument relied on the 1989 Supreme Court decision in Reid, which interpreted “employee” for purposes of the work-for-hire test as being defined according to “the general common law of agency.” Although Markham acknowledged that Reid was directed to the 1976 Act, he contended that the logic of Reid should extend to the 1909 Act, thereby nullifying the “instance and expense” test in favor of the general common law of agency.

Four years after the Supreme Court’s decision in Reid, however, the First Circuit applied the “instance and expense” test in Forward to a work covered [...]

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Oh the Horror: No Work for Hire in Friday the 13th Screenplay

by Joshua Revilla | Oct 14, 2021 | Copyrights

The US Court of Appeals for the Second Circuit affirmed a summary judgment grant, ruling that an author was an independent contractor when writing the screenplay for a horror film and entitled to authorship rights, and therefore entitled to exercise his copyright § 203 termination right. Horror Inc. v. Miller, Case No. 18-3123 (2d Cir. Sept. 30, 2021) (Carney, J.)

Victor Miller is an author who has written numerous novels, screenplays and teleplays. Sean Cunningham is a producer, director and writer of feature films and is the general partner of Manny Company. Miller and Cunningham were close friends who began working together around 1976 and collaborated on five motion pictures in their first five years working together. Miller was a member of the Writers Guild of America, East (WGA) and was a signatory of their Minimum Basic Agreement (MBA), which was the collective bargaining agreement at the time.

In 1979, the success of the horror film Halloween inspired Cunningham to produce a horror film. Cunningham reached out to Miller and they orally agreed that Miller would write the screenplay for their upcoming project. The two came to an agreement using the WGA standard form. Miller then began developing the screenplay and the two worked closely together in discussing ideas for the film. Miller picked his working hours but was responsible for completing drafts based on the production schedule of the film. Cunningham had no right to assign additional works to Miller beyond the screenplay.

The dispute concerns whether, for Copyright Act purposes, Miller was an employee or independent contractor of Manny Company, of which Cunningham was the general partner. Cunningham argued that he taught Miller the key elements of a successful horror film, that he gave significant contributions and that he had final authority over what ended up in the screenplay. Miller agreed that Cunningham gave notes but stated that Cunningham never dictated what he wrote. The parties agreed that Cunningham did provide the ideas for making the movie killings “personal,” that the killer remain masked and that they kill a major character early. Miller received “sole ‘written by’ credit” as the screenwriter.

Horror Inc. (successor to Georgetown Horror) financed the project and was given complete control over the screenplay and film. Manny assigned its rights in the film and screenplay to Horror, which registered the copyrights. In the registration, Horror was listed as the film’s work made for hire author with a credit given to Miller for the screenplay. The initial film was a huge hit and has spawned 11 sequels.

In 2016, Miller attempted to reclaim his copyright ownership by invoking his termination rights under 17 U.S.C. § 203 and served notices of termination to Manny and Horror. The two responded by suing Miller and seeking a declaration that the screenplay was a “work for hire,” and therefore Miller could not give a valid termination notice. The district court granted summary judgment to Miller, stating that Miller was the author as he did not prepare the screenplay as [...]

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