The Tenth Circuit issued its opinion in Whyte Monkee Productions, LLC v. Netflix, Inc. on April 30, 2026, affirming summary judgment in favor of Netflix and Royal Goode Productions on all claims of copyright infringement arising from the “Tiger King” documentary series. The decision is notable for its post-Warhol fair use analysis and its guidance that documentary-style use of short archival clips for commentary and context may qualify as fair use without “targeting” the original work.
Claws and Clips: The Footage at Issue
Timothy Sepi worked as a photographer and videographer at the Gerald Wayne Interactive Zoological Park. Founded by Joseph Maldonado-Passage, better known as “Joe Exotic,” the park was a well-known roadside zoo that offered public tours featuring tigers, lions, and other exotic animals.
While employed at the park, Sepi filmed seven videos related to the park and “Joe Exotic TV,” a web series produced on-site. After Sepi terminated his employment relationship with the park, he filmed an eighth video (the Funeral Video) documenting the funeral of Joe Exotic’s husband, Travis Maldonado. The Funeral Video was livestreamed on the “Joe Exotic TV” YouTube page and remained publicly available after the funeral.
Netflix and Royal Goode included short clips from all eight videos in the “Tiger King” series. The clip from the Funeral Video lasted approximately 66 seconds out of the nearly 24-minute original, which accounted for a small fraction of the episode and an even smaller fraction of the entire series. In the documentary, footage of Joe Exotic’s eulogy was interspersed with other footage, including comments from Travis Maldonado’s mother, who critiqued Joe Exotic’s theatrical behavior during the service.
The district court granted summary judgment to Netflix and Royal Goode, holding that (1) seven of the videos were works made for hire under § 201(b) of the Copyright Act, and thus Sepi did not own the copyrights in the works, and (2) Netflix and Royal Goode’s use of the eighth Funeral Video was fair use that did not infringe upon Sepi’s copyright.
The Pride Decides: Tenth Circuit Rejects Infringement Claims
The Tenth Circuit affirmed the district court on both issues. For the first seven videos, the Court held that Whyte Monkee Productions and Sepi had waived their argument by raising a new theory on appeal that was not presented previously and failed to argue for plain error. As to the eighth Funeral Video, the Court conducted a detailed fair use analysis and agreed with the district court that all four statutory factors weighed in favor of Netflix and Royal Goode.
The Tenth Circuit opinion makes several notable contributions to fair use analysis after the Supreme Court’s 2023 decision in Andy Warhol Foundation for the Visual Arts, Inc. v. Goldsmith.
Declawed by the Factors: How the Funeral Clip Passed Fair Use
- Purpose and Character (Factor 1): The use was “documentary-style borrowing” for comment and education about Joe Exotic and the so-called big cat world; not to memorialize the funeral, which was the Funeral Video’s original purpose. That distinct purpose made the use significantly transformative. “Targeting” or directly commenting on Sepi’s video was not required under Warhol. The Court also emphasized that commerciality focuses on exploitation of the copyrighted material itself; here, the brief, incidental clip did not materially drive revenues, so commerciality did not outweigh transformativeness.
- Nature of the Work (Factor 2): The Funeral Video was “more factual than creative,” consisting of a single-camera, tripod recording of real events with minimal creative choices, and it had already been livestreamed and made publicly available on YouTube, which undercut any claim of unpublished status. Both points favored fair use.
- Amount and Substantiality (Factor 3): Netflix used an insubstantial amount of the Funeral Video, about 66 seconds, and only what was reasonably necessary to illustrate Joe Exotic’s conduct in context. Even assuming qualitative importance, the selection was tailored to the transformative purpose.
- Market Effect (Factor 4): “Tiger King” is not a substitute for the Funeral Video. Plaintiffs identified no protectible derivative market that could be harmed. And speculative licensing theories were insufficient. The transformative use, the limited amount taken, and evidence that Sepi had never licensed or attempted to license his works all weighed against market harm.
Keeping Your Claws Clean: Fair Use Considerations from ‘Tiger King’
- For documentary filmmakers, this decision confirms that incorporating short archival clips for commentary and storytelling purposes may be fair use after Warhol where the use is genuinely transformative and insubstantial in quantity. Filmmakers need not demonstrate that their documentary directly critiques or comments upon the specific copyrighted work borrowed. It is sufficient to repurpose the clip for a distinctly different objective within the broader narrative.
- For copyright holders, the decision underscores the importance of affirmatively identifying derivative markets when asserting fourth-factor harm, rather than relying on speculation. It also suggests that publicly disseminating a work, even informally via livestreaming, may undercut any argument that the work is “unpublished” for fair use purposes. And it reminds copyright holders to manage their licenses and assignments to ensure they own the proper rights.
- For streaming platforms and content producers, the opinion provides comfort that the mere fact of operating a for-profit platform does not doom a fair use defense. The commerciality inquiry properly focuses on whether the copyrighted material itself is being exploited as a revenue driver, not whether the larger work in which it appears is commercial.