Unraveling the threads of Fair Use and how recent legal rulings threaten documentary filmmakers.  Join Scott Hervey and Jamie Lincenberg as they dissect the Tenth Circuit’s Impact on filmmaking in this episode of ‘The Briefing.’

Get the full episode on the Weintraub YouTube channel here or listen to this podcast episode here.

Leading up to the Supreme Court’s decision in Andy Warhol Foundation versus Goldsmith, there was significant concern by documentary filmmakers about how the Court’s decision in favor of Goldsmith could upend how those filmmakers make use of fair use as part of the filmmaking process. Now, in light of the Tenth Circuit recent application of the Warhol case in Timothy Seppi versus Netflix, filmmakers are again concerned and are calling for a rehearing or an inbound rehearing. If left uncheck, the Motion Picture Association said that this decision threatens to severely impair the ability of filmmakers and other creators to create documentaries, docudramas, biographies, and other works based on the real world. I am Scott Hervey from Weintraub Tobin, and today I’m joined by my colleague, Jamie Lincenberg. We are going to talk about the Tenth Circuit’s controversial decision in Seppi versus Netflix. On this installment of “The Briefing.” Jamie, welcome back to “The Briefing.”

Thanks for having me, Scott.

For a while now, I have expressed some concern that the Warhol case does, in fact, remove a fair use basis that filmmakers have relied on for quite some time. The use of a third-party clip or third-party content as a biographical anchor. That is, quoting copyrighted works of popular culture to illustrate an argument or point, and the use of copyrighted material in a historical sequence. Those have been used for a very long time by filmmakers, and they’ve been regarded as a best practice in fair use.

Right. A great example of what a biographical anchor looks like comes from the of Hofheinz first A&E Television Networks, where the court found that a TV biography that used a short clip of movie star Peter Graves from one of his earliest films was justified, not because it commented on the original film, but because it enabled the viewer to understand the actor’s modest beginnings in the film business.

That’s right. The Tenth Circus decision in Seppi runs the risk of forever reversing decades of jurisprudence. Seppi, some facts of the case. Seppi was a former Zoom employee who livestream the funeral of the husband of Joe Exotic. Joe Exotic, Tiger King, right? Everybody knows Joe Exotic and Tiger King. Netflix used a one-minute portion of the funeral video in its series, Tiger King. Netflix tried to dismiss Seppi’s infringement claim based on fair use, specifically based on the biographical anchor claim or jurisprudence. Post-war hall in determining fair use, courts ask, as part of the first factor, whether and to what extent the use at issue has a purpose or character different from the original and whether that supports a justification for copying. Now, the appeals court granted Seppi’s opposition to Netflix’s motion, finding that Netflix’s use was not transformative under the first fair use factor since it did not criticize or comment on the work itself, meaning the video that Seppi filmed, but instead was used to comment on and criticize Joe Exotic.

The concerns from the parties that filed briefs requesting review of this decision all express concern that the Tenth Circuit, whether it was intentional or not, has created a bright line comment on requirement and is not examining other justifiable uses beyond criticism or commentary.

That’s right. Left as is, there is a concern that this opinion will negatively impact filmmakers who use third-party content for historical value and newsworthiness, even though they do not target the underlying third-party content through criticism or commentary. A number of the amicus brief cite past cases supporting the use of third-party content by a biographer or a filmmaker as a biographical or historical anchor. These cases include Time, Inc. Versus Bernard Geis Associates, which involved the use of sketches of President Kennedy’s assassination that were taken from the famous Zapruder films, Bill Graham Archives versus Dorian Kindersley, which involved the use of Grateful Dead concert posters in a book about the history of the band. Sofa Entertainment versus Dodger Productions, which involved the use of a short clip from the Ed Sullivan show in a musical about the band, The Four Seasons, and Elvis Presley enterprises versus Passport Video, which used television clips featuring Elvis. While the funeral scene in Tiger King isn’t as significant as President Kennedy’s assassination, and while Joe Exotic doesn’t have the same cultural significance as The Grateful Dead or Elvis, the funeral does bear on an issue of public interest. And the funeral clip did serve as a historical marker and biographical anchor in the Netflix program Tiger King.

This uncertainty isn’t good for documentarians or the consuming public that enjoys these compelling documentaries.

No, Jamie, it certainly isn’t. I do think that the Tenth Circuit needs to reexamine its opinion, either as a rehearing or a rehearing in bonk, because left unexamined, I think this may be the beginning of the end of the ability to use the biographical anchor Exemption under fair use, essentially.

Yeah. For so many reasons, that would be a huge concern to the documentary space and to many of our clients who work in that area, and we advise them on fair use, and this is definitely going to dictate how we advise our clients.

Yeah. As a practical matter, as a practical matter, it really can end up prohibiting a documentarian from telling a story. If they are unable to express a fact, if they’re unable to explain how a fact or an event occurred in a compelling manner without paying an exorbitant license fee, they may be priced out of their ability to make their documentary, or they may not be able to tell their story in a way that would capture the viewer’s attention. Either way, I don’t think that this ruling really encourages the evolution of creative arts. It doesn’t encourage the reuse of works in a different and compelling and entertaining manner. I think it stymies creativity and puts unnecessary roadblocks in front of storytellers who sometimes need to be able to use existing material in a different way to tell their stories.

Yes, we will definitely follow along and see where this ends up.

We have an update in the case of Seppi versus Netflix. The day after we recorded the main portion of this episode, the portion you just listened to, the Tenth Circuit vacated its March 27, 2024 judgment and granted Netflix’s request for a rehearing. As part of the rehearing, the court asked for a supplemental briefing and oral argument on the questions of whether the principles of fair use jurisprudence that relate to documentary filmmaking, including the use of content as historical markers, are appropriate in light of, in this case, Netflix’s commercial use of the film clip, and what impact does the Warhol decision in general have on the fair use jurisprudence applicable to documentary filmmaking? So maybe the use of third-party content in documentaries as a historical marker or a biographical anchor is not that. We’ll wait and see what the Tenth Circuit does in light of this rehearing.

Thank you for listening to this episode of “The Briefing.” We really hope you enjoyed the episode. If you did, please remember to subscribe, leave us a review, and share the episode with your friends and colleagues. If you have any questions about the topics we covered, please leave us a comment.