RPJ’s Daniel J. Ain Quoted on the Future of Fair Use in Documentary Filmmaking for Law360
In a new Law360 piece, highlighting copyright cases to look out for in 2026, RPJ’s Daniel J. Ain commented on Whyte Monkee Productions LLC et al. v. Netflix Inc., a case initially filed in 2020.
The case arises out of Netflix’s use of footage originally shot by Timothy Sepi in Tiger King, a viral docuseries about Joe Exotic and his private zoo. One clip at issue depicted the funeral of Travis Maldonado, Mr. Exotic’s husband (the “Funeral Video”). Mr. Sepi and his production company (Whyte Monkee) alleged that Netflix’s use of this footage was copyright infringement.
In 2022, the United States District Court for the Western District of Oklahoma granted summary judgment in favor of Netflix and concluded that use of the Funeral Video was a fair use. On appeal in 2024, however, a Tenth Circuit panel partially reversed. While affirming the district court’s ruling as to all of the other clips, the panel held that the lower court erred with respect to the Funeral Video, finding that Netflix’s use of the Funeral Video did not favor fair use (finding that the first factor and potentially the fourth factor did not point in Netflix’s favor), and remanded for further proceedings.
The Tenth Circuit notably relied on the Supreme Court’s 2023 decision in The Andy Warhol Foundation v. Goldsmith, a Supreme Court decision that many viewed as having a limited and narrow application in documentary filmmaking. Ain noted in his comments to Law360 that the Tenth Circuit’s opinion was indeed “a major surprise.” After backlash from the film industry, including the filing of amicus curiae from major documentary film organizations, arguing that the Tenth Circuit has misapplied Warhol, the Tenth Circuit ultimately decided to vacate its decision and grant a rehearing.
Ain commented further that “it was a relief when the Tenth Circuit vacated the opinion and granted a rehearing, noting explicitly its interest in understanding the effect of the opinion on documentary filmmaking.” A new ruling is expected in 2026.
To read the full article and more of Ain’s commentary, click here.
