Addressing Copyright Fair Use in the Wake of the Supreme Court’s Recent Guidance in Warhol: Tenth Circuit Partially Reverses District Court’s Decision in Whyte Monkee Productions, LLC; Timothy Sepi v. Netflix, Inc.; Royal Goode Productions, LLC

In a recent decision by the US Court of Appeals for the Tenth Circuit, the district court’s grant of summary judgment in favor of the defendants in a copyright infringement case was partially reversed. The case, Whyte Monkee Productions, LLC; Timothy Sepi v. Netflix, Inc.; Royal Goode Productions, LLC, centered around the popular documentary series Tiger King: Murder, Mayhem and Madness.

The plaintiffs, Timothy Sepi, alleged that the defendants, Netflix and Royal Goode Productions, infringed on their copyrights by using eight videos filmed by Sepi in the documentary series. The district court had initially ruled in favor of the defendants, stating that seven of the videos were considered works made for hire and that the use of the eighth video was permissible fair use.

On appeal, the Tenth Circuit affirmed the decision regarding the first seven videos but reversed the grant of summary judgment in favor of the defendants for the eighth video. The Court found that the district court erred in assessing the first and fourth fair use factors, specifically in relation to the purpose and character of the use and the effect on the potential market for the copyrighted work.

The Tenth Circuit emphasized the importance of considering all four fair use factors together in light of the aim of copyright law, which is to promote the progress of science and the arts. The Court noted that the recent guidance from the Supreme Court in Warhol regarding transformative use played a significant role in their decision, as the defendants’ use of the funeral video did not have a critical bearing on the substance or style of Sepi’s original work.

Ultimately, the Tenth Circuit remanded the case back to the district court with instructions to allow the defendants to provide additional evidence on the market harm and to reweigh all four fair use factors. This decision highlights the complexities of copyright fair use and the importance of a thorough analysis of each factor in determining the outcome of infringement cases.