10th Circuit to Re-Hear Recent Tiger King Case Concerning Fair Use following DCP’s Amicus Brief on behalf of Documentary Filmmakers
Donaldson Callif Perez LLP (“DCP”), the UCI IP, Arts and Technology Law Clinic led by Jack Lerner, and attorney Rom Bar-Nissim of Heah Bar-Nissim, recently filed a brief on behalf of all members of the documentary film community who have been detrimentally impacted by the 10th Circuit’s decision in Whyte Monkee Productions v. Netflix.
On March 27, 2024, the appeals court for the 10th Circuit made a decision regarding the use of clips in “Tiger King” that, if relied upon as precedent, will result in a hugely damaging effect on documentary filmmakers’ reliance on fair use. The court held that one minute of featured footage was not “transformative” in nature under the first factor, and heavily based its decision on the fact that “Tiger King” was commercially successful.
The amicus brief successfully influenced the 10th Circuit to re-hear the important Fair Use case en banc (on the bench) on the basis that the appeals court misapplied the US Supreme Court’s discussion of fair use in last year’s case Warhol v. Goldsmith. The court wrote that they are “particularly interested in the impact of the filed opinion on the law and practice of documentary filmmaking.”