A recent U.S. decision offers useful guidance on the use of short archival clips in documentary works – creating some room for content creators, but not an unlimited license to use third-party materials
The U.S. Court of Appeals held that Netflix’s use of a short video clip from a funeral in the documentary series Tiger King: Murder, Mayhem and Madness constituted Fair Use.
The decision was issued in the dispute between Netflix and Whyte Monkee Productions, after the Court revisited its earlier 2024 ruling, in which it had expressed doubt as to whether the fair use defense applied to that particular clip.
The Netflix series Tiger King, released in March 2020, explored the world of private exotic animal parks in the United States, with Joe Exotic at the center of the story. The series included several video clips filmed by Timothy Sepi, who had previously worked as a videographer for Joe Exotic’s park.
Sepi and Whyte Monkee Productions filed a copyright claim against Netflix and the production company Royal Goode Productions, alleging unauthorized use of eight video clips filmed by Sepi. With respect to seven of those clips, the district court held that they had been created during the course of Sepi’s employment and therefore were not owned by him, or that their use did not amount to copyright infringement.
The remaining dispute focused on the eighth clip: footage from the funeral of Travis Maldonado, Joe Exotic’s husband, which was filmed after Sepi had already stopped working for the park.
Netflix used only a short excerpt from the funeral video in the series – approximately 66 seconds from a longer video. The district court held that this use was fair use. In 2024, the Court of Appeals partially reversed that decision and held that the question of whether the use was sufficiently transformative should be reconsidered, including in light of the U.S. Supreme Court’s decision in Warhol. The Court later agreed to hear further arguments from Netflix, among other reasons because of the potential implications of the ruling for documentary filmmaking.
For these purposes, transformative use means that the use of an existing work does not merely copy or replace it, but gives it a new purpose, context, meaning or function within the new work.
In Andy Warhol Foundation v. Goldsmith, the U.S. Supreme Court considered whether Andy Warhol’s use of a photograph of the musician Prince constituted fair use. The Court held that the fact that a new work adds a different style, meaning or message is not, by itself, sufficient to make the use fair. Instead, courts must examine the specific purpose of the challenged use. In that case, both the original photograph and Warhol’s work ultimately served a similar commercial purpose: licensing an image of Prince to a magazine. Accordingly, at least for purposes of the first fair use factor, the Warhol Foundation’s use was not considered sufficiently transformative to justify use without permission. The decision made clear that “transformative” is not a magic word, and that even a work with a new artistic character may infringe copyright if it competes in the same market and serves the same purpose as the original work.
In its new decision, the Court again ruled in favor of Netflix. It held that Netflix’s use of the funeral clip was well within the type of short archival use commonly found in documentary works, and that the use was significantly transformative.
Put simply, the Court did not view Tiger King as a substitute for the original funeral video. Rather, it viewed the series as a broader documentary work that made limited use of an existing clip to tell a different story — about Joe Exotic, his personality, his environment and the wider context of the series.
The first factor – the purpose and character of the use – was at the heart of the Court’s analysis. Netflix did not use the funeral video in order to recreate the funeral as such, or to provide viewers with a substitute for the original video. The clip was used as part of a broader documentary series intended to portray and interpret the world of Joe Exotic and the people around him. The Court viewed this as transformative use, consistent with the use of short archival clips in documentary works.
The practical point is that merely placing existing content within a new work is not enough. The key question is what is being done with that content: is it simply being used as a convenient substitute for original material, or does it play a new role within the work – for example, to illustrate a point, support criticism, provide factual context or advance a narrative different from that of the original work?
The funeral video was a protected work, but it was primarily factual and documentary in nature. As a general matter under U.S. law, fair use is more readily recognized where the original work is factual or documentary, as opposed to a highly creative work such as a feature film, artistic photograph, musical work or literary work.
The district court had held that, while the video could meet the originality threshold required for copyright protection, its use in Tiger King also had to be assessed in light of its documentary character.
Netflix used only a small portion of the funeral video -approximately 66 seconds. A limited amount of use does not, by itself, guarantee a successful fair use defense. However, it can support such a defense where the use is confined to what is reasonably necessary for the new purpose.
The practical lesson is clear: even where fair use may be available, the use should be measured and focused. The broader or longer the use, or the more it captures the “heart” of the original work, the greater the legal risk.
The fourth factor examines whether the secondary use harms the potential market for the original work or serves as a substitute for it. In its earlier 2024 decision, the Court had taken the view that Netflix had not provided a sufficient basis to show the absence of market harm.
In the new decision, however, the Court accepted Netflix’s position that the use of a short clip within a broader documentary series did not replace the original funeral video. A viewer seeking to watch the funeral video as such would not receive a full substitute by watching a short clip embedded in a documentary episode serving a different purpose.
The decision in Andy Warhol Foundation v. Goldsmith narrowed, or at least clarified, how U.S. courts assess “transformative use” within the fair use analysis. Following Warhol, it is not enough that the second work adds new meaning or is presented in a different style. Courts must carefully examine the specific purpose of the use and how closely that purpose overlaps with the purpose of the original work.
In its earlier 2024 decision, the Court relied on Warhol to question whether Netflix’s use was sufficiently transformative, mainly because the series did not “comment on” the funeral video as an original work, but instead used it to say something about Joe Exotic.
The new decision is important because it refines the balance after Warhol. Even if the secondary use is not direct criticism of the original work itself, it may still be transformative where it is incorporated into a broader documentary work, serves a new purpose and does not operate as a commercial substitute for the original.
The decision provides some encouragement for content creators, media companies and platforms that use archival materials. However, it does not create an open license to use third-party content without permission.
The practical message is that the fair use argument becomes stronger where several factors come together: the material is incorporated into a new context; the use is short and focused; there is a clear purpose that differs from the purpose of the original work; and the use does not replace the market for the original.
For businesses and marketing teams, the decision is particularly relevant when using video clips, photographs, social media posts, historical materials, news footage or online content in corporate videos, presentations, campaigns or documentary-style content. That said, purely commercial use, advertising use, or use intended mainly to “enrich” marketing content with existing creative material may be assessed differently from genuine documentary use.
It is also important to remember that this is a U.S. decision applying the U.S. doctrine of Fair Use. Israeli law recognizes a doctrine of fair use that shares certain features with U.S. law, but the analysis is not necessarily identical. Where content is intended for publication in Israel, the United States or multiple jurisdictions, a case-specific legal analysis should be carried out under the relevant law.
The Netflix decision is important for the media and content industries, particularly after the uncertainty created by Warhol. It confirms that short use of archival footage in a documentary work may qualify as fair use, even where the secondary work is commercial, provided that the use serves a new purpose and does not substitute for the market for the original work.
At the same time, the decision is not a blanket approval to use existing content without permission. For companies, platforms, marketing departments and creators, the key lesson is to conduct a structured analysis before using third-party content:
a. What is the original content?
b. What is the scope of the intended use?
c. What is the new purpose being served?
d. Is there an available licensed alternative?
e. Could the use harm the market for the rights holder?
In appropriate cases, this type of analysis can support responsible, creative and well-founded use of existing content – without unnecessarily restricting innovation and content creation.
