IP Law Daily, COPYRIGHT—10th Cir.: Netflix escapes the clutches of Tiger King lawsuit, as court affirms summary judgment on fair use and works made for hire grounds, (May 1, 2026)

By Robert Margolis, J.D.

Plaintiff forfeited works-made-for-hire argument by not making it below, and court found all four fair use factors favored defendants.

The Tenth Circuit Court of Appeals in Denver has affirmed summary judgment for defendants Netflix, Inc. and Royal Goode Productions, LLC, dismissing a copyright infringement lawsuit brought by filmmaker Timothy Sepi and Whyte Monkee Productions, LLC, arising out of the use of excerpts of eight videos shot by Sepi in the widely popular documentary series Tiger King. In a 79-page decision focusing largely on the defendants’ fair use defense as to one of the eight videos, the court held the use in a Tiger King episode of a short video snippet of the series’ focal point, Joe Exotic, giving a eulogy at his husband’s funeral, was “transformative” from the purpose of the original video, thus supporting the first fair use factor and informing several of the remaining factors. Ultimately all four fair use factors favored the defendants, the court held. The court affirmed dismissal as to the other seven videos as works made for hire, noting that Sepi forfeited the argument he made in the appellate court because he did not make it below (Whyte Monkee Productions, LLC v. Netflix, Inc., No. 22-6086 (10th Cir. Apr. 30, 2026)).

Lawsuit. The lawsuit was brought by Ron Sepi, a videographer hired to create in-house video for an animal theme park in Oklahoma. Joseph Maldonado Passage—otherwise known as Joe Exotic—ran the theme park. Joe Exotic and his theme park shot to worldwide fame in 2020 with the release of the Netflix series Tiger King. But the release of Tiger King led to several lawsuits, including this one by Sepi. The videographer claimed that Netflix used eight clips from his footage without his permission as part of the series. He sued Netflix as well as the production company behind the show, Royal Goode Productions, for copyright infringement.

On April 27, 2022, the district court granted summary judgment to the defendants. First, it held that seven of the videos were works made for hire such that Sepi did not own the copyrights in the works. Second, it found that the defendants’ use of the eighth video (the “Funeral Video”) was protected by the doctrine of fair use. Sepi appealed.

The Tenth Circuit originally heard oral arguments on the appeal on March 22, 2023, and published a decision about a year later affirming the district court as to the seven videos being works made for hire but reversed as to the Funeral Video and remanded for further proceedings. After the defendants filed a limited petition for partial panel rehearing and rehearing en banc, the Tenth Circuit vacated its decision and granted in part the petition for panel rehearing. It directed the parties to file supplemental briefs addressing the relevance of “predominant principles of fair use jurisprudence that relate to documentary use for ‘preamble’ purposes (17 U.S.C. § 107) of film clips” and the impact of the Supreme Court’s decision in Andy Warhol Foundation for the Visual Arts, Inc. v. Goldsmith, 598 U.S. 508 (2023), on the analysis. After receiving the additional briefing, including from several amici curiae, the court issued its ruling, affirming summary judgment as to all eight videos.

Works made for hire. The court made short shrift of Sepi’s argument for reversal as to the seven videos the district court held to be works made for hire. Sepi argued on appeal he was employed only “to take photography and videography of park tours,” and the seven videos were created while he was engaged in “the production and editing of music videos,” a task far different from recording park tours and therefore not within the scope of his employment. The problem with this argument, the court held, is that Sepi had not asserted this theory in the district court and could not therefore assert it for the first time on appeal. In the district court, Sepi contended the videos were shot for Whyte Monkee Productions (an entity the Articles of Organization of which include Joe Exotic’s email address, the Park’s street address, and “Tim Sepi” as signatory). On appeal, he asserted that the videos were not shot for Whyte Monkee, but on his own time. As these theories are “factually incompatible,” Sepi’s argument on appeal was not raised below and was forfeited for purposes of appeal, the court held.

Fair use. The court held all four fair use factors weighed in favor of the defendants’ fair use defense.

Purpose and character. The first fair use factor concerns “the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes.” 17 U.S.C. § 107(1). This factor “considers the reasons for, and nature of, the copier’s use of an original work.” Warhol, 598 U.S. at 527-28. The key inquiry is “‘whether and to what extent’ the use at issue has a purpose or character different from the original [work].” Warhol, 598 U.S. at 529 (quoting Campbell v. Acoff-Rose Music, Inc., 510 U.S. 569, 579 (1994)). Courts look to whether a use transforms an original work to such a degree that it is not considered a derivative use but instead becomes truly transformative. The more transformative the second work, the less significance will be given to other factors, such as commercialism. Another consideration highlighted by Warhol is the secondary work’s justification for using the original work. In the “broad sense,” use is justified if the secondary work has a distinct purpose from the original, since that furthers the goal of copyright, “to promote the progress of science and the arts, without diminishing the incentive to create.” Warhol, 598 U.S. at 531. If such a “broad sense” distinctiveness is not present, then there must be a more “narrow sense” in which the purpose of the second work is distinct, such as parody.

The court also noted the secondary use in this case was for filmed documentaries, which frequently incorporate snippets of copyrighted materials, and for which courts frequently find the first factor weighs in favor of fair use. While there is no presumption in favor of fair use when documentaries are at issue, to the extent “the scales often have tilted in favor of fair use in the area of documentaries,” in the words of the court, it is because they frequently serve “preamble purposes,” by “commenting on social ills, criticizing industrial developments, or educating viewers regarding notable personalities and world events.” Thus, courts recognize that documentaries typically have distinct creative purposes from the original materials they use.

Applying the foregoing principles, the court found the first factor weighs in favor of fair use. The defendants used sixty-six (66) seconds of the nearly 24-minute Funeral Video as part of a work reflecting “preamble purposes,” to further a narrative that commented on and educated viewers about Joe Exotic and the “big cat world.” The excerpt the defendants used illustrated Joe Exotic’s purported megalomania, highlighted his showmanship, and commented on specific factors influencing the world of big cat breeders. It juxtaposed Joe Exotic giving a eulogy for his late husband, Travis Maldonado, with clips of Mr. Maldonado’s mother criticizing his showmanship at that occasion. In contrast, Sepi shot the Funeral Video to commemorate Mr. Maldonado’s funeral. The court called the defendants’ use of the Funeral Video snippet “transformative,” involving “classic documentary-style borrowing” and thus reflecting the “preamble purposes associated with many documentaries.” It also noted that relatively insubstantial use of the Funeral Video (roughly 4% of it), and only to the extent necessary to make the narrative point about Joe Exotic further supported finding the use transformative.

As a result, the fact that defendants profited from the documentary series as a whole, i.e. it had a commercial use, was given less importance. In that regard, there was no evidence the defendants gained materially from the commercial exploitation of the Funeral Video snippet itself, the court pointed out. Indeed, the Funeral Video snippet comprised just 2.58% of the episode of Tiger King in which it appeared, and less than 1% of the series as a whole.

Nature of copyrighted work. The second fair-use factor looks at “the nature of the copyrighted work,” 17 U.S.C. § 107(2), focusing generally (1) on whether a work is factual or a work of fiction or fantasy, and (2) whether a work has been published. The court held that Sepi’s work, the depiction of a real funeral, was factual, which supports fair use because the law recognizes a greater need to disseminate factual works. That Joe Exotic is himself “compelling” and “creative” does not make a video documenting him at a real event non-factual, the court held, rejecting Sepi’s argument.

The court also rejected Sepi’s argument that his livestreaming the video via YouTube, and maintaining it there afterwards, did not amount to publishing the work. He argued the court should use the Copyright Act’s definition of “publication,” 17 U.S.C. § 101, but the court declined, noting it is not aware of any Supreme Court decisions even discussing that definition when addressing the second fair use factor. Instead, the Supreme Court has focused on whether a work has been made public, which is unquestionably the case for a video streaming on YouTube. Here, Sepi had the right to control the first public appearance of his video, which he did by streaming it.

Amount of copyrighted work used. The quantitatively insubstantial amount of the Funeral Video the defendants used, approximately 4% as noted above, while not dispositive of this factor, weighs in favor of fair use, the court noted. Also important to its conclusion on this factor was that defendants appeared to have used no more of the Funeral Video than was necessary for their transformative purpose.

Effect of use on market. The court found this factor weighs in favor of fair use because Sepi did not dispute Tiger King is not a substitute for the Funeral Video, Sepi did not identify any protectable derivative markets that may be harmed, defendants’ use of the Funeral Video is significantly transformative, and the evidence tended to confirm to the court that no derivative markets are harmed. Particularly important to the court’s finding on this factor was that Sepi did not identify any protectable derivative market that may be harmed. He contended that because fair use is an affirmative defense, and the defendants did not present evidence of harm to derivative markets, he should prevail on this factor. But as the court pointed out, a defendant has no burden to disprove effects on hypothetical derivative markets that a plaintiff has not identified. And evidence showing that Sepi has not licensed or attempted to license the Funeral Video further cuts against derivative market harm.

The Case is No. 22-6086.

Judge: Holmes, J.

Attorneys: Gregory Keenan (Digital Justice Foundation) for Whyte Monkee Productions, LLC. Robert H. Rotstein (Mitchell, Silberberg & Knupp LLP) for Netflix, Inc. and Royal Goode Productions, LLC.

Companies: Whyte Monkee Productions, LLC; Netflix, Inc.; Royal Goode Productions, LLC

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