Copyright attorneys eagerly anticipated the U.S. Supreme Court's fair use opinion in Andy Warhol Foundation for the Visual Arts, Inc. v. Goldsmith last spring, hoping the Court would provide clarity regarding when the use of a copyrighted work is sufficiently “transformative” to qualify as fair use. The Court endorsed a narrower application of that doctrine, but just how narrow remained unclear. 

A recent decision by the U.S. Court of Appeals for the Tenth Circuit suggests that the change may be more significant than many anticipated, and creates substantially more risk for producers and documentarians hoping to rely on the fair use doctrine.

In Whyte Monkee Productions, LLC v. Netflix, Inc., the Tenth Circuit considered whether using an unlicensed video clip in the pandemic-era hit docuseries Tiger King qualified as fair use. Producers used a one-minute clip from a 24-minute video that captured the eulogy delivered by Tiger King star Joe Exotic at his late husband’s funeral. Although the clip was ostensibly used to illustrate Exotic’s notorious showmanship, and despite the leeway traditionally extended to documentary producers in fair use analyses, the court held that the use was not transformative.

After Warhol, it’s no longer sufficient to “add some new expression, meaning, or message” to an original work. Instead, to qualify as fair use, the new work typically must contain commentary having a “critical bearing on the substance or style” of the original. Without such commentary, Justice Sotomayor explained, “the claim to fairness in borrowing from another’s work diminishes accordingly (if it does not vanish)” and other factors in the analysis take on greater importance.

Against that backdrop, the Tenth Circuit rejected Tiger King producers’ argument on transformativeness because they failed to use the funeral video to comment on its creative decisions or intended meaning, but instead used it to comment on the video’s subject:  Exotic. In other words, the fact that the clip was used for a different purpose than the original video—not for the sake of remembrance, but rather to paint a picture of Exotic—was insufficient. As the court wrote:

Here . . . Defendants used the Funeral Video to comment on Joe Exotic. More specifically, Defendants used the Funeral Video to illustrate Mr. Exotic’s purported megalomania, even in the face of tragedy. By doing so, Defendants were providing a historical reference point in Mr. Exotic’s life and commenting on Mr. Exotic’s showmanship. However, Defendants’ use did not comment on [the] video—i.e., its creative decisions or its intended meaning. In other words, the purported commentary did not “comment” on the original composition, but rather targeted a character in the composition. And Warhol has deemed such a use to not be sufficiently transformative.

The court did not make a final fair use determination but rather remanded for further analysis. It remains to be seen how the district court will weigh the fair use factors on remand—and whether other circuit courts will adopt a similarly narrow approach to transformativeness as the Tenth Circuit. In the meantime, producers may want to limit unlicensed uses, where possible, to those that criticize or interpret the original work itself or comment on its creative qualities. Uses that merely comment on someone or something depicted in the original work should be regarded as higher risk. 

This may prove especially difficult in documentary projects and other unscripted productions that rely principally on participant interviews, where interviews are often conducted before decisions are made about licensing assets and where “writing to fair use” may not be feasible. On these projects, pre-interview planning becomes all the more important.

Even with appropriate commentary, however, unlicensed uses might still be regarded as infringing if they harm the market for or value of the original work. As to that issue, Tiger King producers argued there was no market capable of being harmed because the creator of the funeral video had never licensed it. The Tenth Circuit did not seem so convinced. The fact that producers had licensed other videos for the docuseries, the court mused, suggested there was a licensing market for the funeral video. In other words, producers’ good faith efforts to license other works precluded them from arguing there was no market for the unlicensed work.

That’s not to say a production shouldn’t license assets whenever it can. It absolutely should. But, doing so carries some risk where the production also plans to rely upon fair use for unlicensed assets. Ultimately, that may be a necessary evil on projects with archival budget limitations—and to be undertaken with eyes open to the potential consequences.