Whyte Monkee Productions’ lawsuit against Netflix over the use of a funeral video in the “Tiger King” docuseries represents a critical examination of fair use in documentary filmmaking. The Tenth Circuit initially ruled in favor of Whyte Monkee Productions, finding that Netflix’s use of the video clip did not meet the criteria for fair use. The court emphasized that Netflix’s commercial gain from the docuseries weighed heavily against a finding of fair use, particularly because the clip was not transformed or used to comment on the original work itself.
The initial ruling sent shockwaves through the documentary filmmaking community, with many filmmakers and legal experts expressing concern that the decision could impose new limitations on the use of archival footage in documentaries. However, the Tenth Circuit later vacated its decision and granted an en banc rehearing, acknowledging the potential impact of the case on the documentary industry. The court has requested additional briefs and set a new round of oral arguments, with particular interest in how the Warhol decision might influence the interpretation of fair use in this context.
Legal analysts are divided on the likely outcome of the rehearing. Some argue that Netflix’s use of the footage serves a broader public interest by providing historical context, which should qualify as fair use. Others, however, believe that the commercial nature of Netflix’s production could ultimately tip the scales against them. The final ruling, expected later in 2024, is anticipated to have significant implications for how documentary filmmakers approach the use of copyrighted material in their projects [❞].