UPDATE #2, JUNE 3, 2024: The Clinic has filed a Supplemental Brief providing further guidance to the Tenth Circuit in response to its May 13 order. In the brief, we sought seek to answer a question the court had posed relating to “the predominant principles of fair use jurisprudence that relate to documentary use.” The supplemental brief seeks to assist the Court by providing additional guidance on “the law and practice of documentary filmmaking.” You can access our brief here.
UPDATE MAY 13, 2024: Amazing news! The Tenth Circuit has GRANTED in part the petition for rehearing in Whyte Monkee, the important fair use case involving documentary filmmaking! The panel VACATED the earlier holding, and asked for additional briefing which will be due in June.
Today five organizations representing the nationwide documentary community filed a brief amicus curiae in a massively important case involving fair use. The International Documentary Association, Film Independent, Kartemquin Films, Women in Film, and the University Film and Video Association asked the United States Court of Appeals for the Tenth Circuit, sitting in Denver, to reconsider a concerning ruling that threatens to undermine many fair use practices that documentary filmmakers rely on every day. The UCI Intellectual Property, Arts, and Technology Clinic, together with seasoned copyright litigator Rom Bar-Nissim and leading documentary film attorneys Donaldson Callif Perez LLP, drafted an amicus brief asking to reconsider this ruling.
The case at issue, Whyte Monkee Prods., LLC v. Netflix, Inc., involves use of roughly one minute of footage in the documentary series Tiger King. A three-judge panel of the appeals court held that the use was not “transformative” in nature because it did not specifically discuss the authorial contributions to the footage used. In order to be fair use, the panel held, commentary must be made on the composition of the footage (e.g., lighting, angles, editing, etc.). and that commentary directed solely at the subject matter shown in the footage is not fair use. However, this is the kind of usage that documentary filmmakers employ under fair use on a daily basis and is supported by decades of case law. In our view, the panel seriously overread a recent Supreme Court Decision, Warhol Foundation for the Visual Arts v. Goldsmith, which actually supports documentary fair use.
“The Panel Decision’s new, restrictive test for fair use,” the brief writes, “will severely disrupt documentary filmmaking by calling many well-established forms of documentary practice into question. The Panel Decision places the Tenth Circuit in direct conflict with decades of fair use jurisprudence, including decisions by the Second, Fourth and Ninth Circuits. Nothing in the Supreme Court’s narrow decision in Warhol Foundation for the Visual Arts v. Goldsmith requires this departure; rather, Warhol supports the critically important, time-honored fair use practices that documentarians rely upon every day.”
In the brief, we highlighted three key practices documentarians make that are threatened by this decision. These include: demonstrating an argument; presenting a historical reference point; and providing otherwise unknown or unavailable information about the work in question.
These well-established fair use practices have been the lifeblood of documentary filmmaking for decades, which is why we are optimistic the Tenth Circuit will grant Netflix’s petition to rehear this appeal.
Go here to read the brief. (Full motion and brief here.)
