NO. 22-6086
IN THE UNITED STATES COURT OF APPEALSFOR THE TENTH CIRCUITWHYTE MONKEE PRODUCTIONS, LLC; TIMOTHY SEPI,PLAINTIFFS-APPELLANTS,V.

NETFLIX, INC.; ROYAL GOODE PRODUCTIONS, LLC,
DEFENDANTS-APPELLEES.
On Appeal from the United States District Court
for the Western District of Oklahoma(No. 5:20-CV-00933-D)
The Honorable Timothy D. DeGiusti, Chief U.S. District Judge
BRIEF OF AMICI CURIAE AUTHORS ALLIANCE, ELECTRONICFRONTIER FOUNDATION, AMERICAN LIBRARY ASSOCIATION,ASSOCIATION OF RESEARCH LIBRARIES, AND PUBLICKNOWLEDGE IN SUPPORT OF DEFENDANTS-APPELLEES LIMITEDPETITION FOR PARTIAL PANEL REHEARING
AND REHEARING EN BANC
Dave Hansen
AUTHORS ALLIANCE
2705 Webster St. #5805
Berkeley, CA 94705
dave@authorsalliance.org

Mitchell L. Stoltz
ELECTRONIC FRONTIER
FOUNDATION
815 Eddy Street
San Francisco, CA 94109
mitch@eff.org(415) 436-9333
Counsel for Amici CuriaeiCORPORATE DISCLOSURE STATEMENT
Pursuant to Rule 26.1 of the Federal Rules of Appellate Procedure, Amici
Curiae state as follows: Amicus Curiae Authors Alliance does not have a parent
corporation and no publicly held corporation owns 10% or more of its stock. Amicus
Curiae Electronic Frontier Foundation does not have a parent corporation and no
publicly held corporation owns 10% or more of its stock. Amicus Curiae American
Library Association does not have a parent corporation and no publicly held
corporation owns 10% or more of its stock. Amicus Curiae Association of Research
Libraries does not have a parent corporation and no publicly held corporation owns
10% or more of its stock. Amicus Curiae Public Knowledge does not have a parent
corporation and no publicly held corporation owns 10% or more of its stock.

Dated: May 2, 2024

By: s/ Mitchell L. Stoltz
Mitchell L. Stoltzii

TABLE OF CONTENTSCORPORATE DISCLOSURE STATEMENT ........................................................ ii
TABLE OF CONTENTS ........................................................................................ iii
TABLE OF AUTHORITIES ................................................................................... iv
STATEMENT OF INTEREST................................................................................. 1
INTRODUCTION .................................................................................................... 3
I.

THE SUPPREME COURT CONTINUES TO RECOGNIZE FAIR USE
PURPOSES BEYOND CRITICISM AND COMMENTARY..................... 3

II. THE PANEL’S UNJUSTIFIED NARROWING OF THE FIRST FACTORENDANGERS MANY ESTABLISHED FAIR USES................................. 7
CONCLUSION....................................................................................................... 11
CERTIFICATE OF COMPLIANCE ...................................................................... 13
CERTIFICATE OF DIGITAL SUBMISSION ...................................................... 14
CERTIFICATE OF SERVICE ............................................................................... 15iii

TABLE OF AUTHORITIES

Cases
Andy Warhol Foundation v. Goldsmith,
598 U.S. 508 (2023).................................................................................... passim
ASTM v. Public.Resource.Org., Inc.,
84 F. 4th 1262 (D.C. Cir. 2023) ............................................................................ 9
Authors Guild v. Google, Inc.,
F.3d 202 (2d Cir. 2015) ........................................................................................ 5
Bill Graham Archives v. Dorling Kindersley,448 F. 3d 605 (2d Cir. 2005) .............................................................................. 10
Campbell v. Acuff-Rose Music,
510 U.S. 569 (1994).......................................................................................... 5, 6
Elvis Presley Enterprises, Inc. v. Passport Video,
349 F.3d 622 (9th Cir. 2003) .............................................................................. 10
Flexible Lifeline Sys., Inc. v. Precision Lift, Inc.,654 F.3d 989 (9th Cir. 2011) .............................................................................. 11
Golan v. Holder,
565 U.S. 302 (2012).............................................................................................. 3
Google, LLC v. Oracle America, Inc.,
593 U.S. 1 (2021).................................................................................................. 5
Hofheinz v. A & E Television Networks,
146 F. Supp. 2d 442 (S.D.N.Y. 2001 .................................................................. 10
New Era Publications Intern., ApS v. Carol Pub. Group,
904 F.2d 152 (2d Cir. 1990) ................................................................................. 9
Sofa Entertainment v. Dodger Productions,
709 F. 3d 1273 (9th Cir. 2013) ........................................................................... 10
Time, Inc. v. Bernard Geis Associates,
293 F. Supp. 130 (S.D.N.Y. 1968) ....................................................................... 8iv

Statutes
17 U.S.C. § 107..................................................................................................... 3, 4
Other Authorities
Alan Yuhas & Maria Cramer, What Happened After ‘Tiger King’, NY TIMES, Oct.
20, 2020 .............................................................................................................. 11
ASSOCIATION OF INDEPENDENT VIDEO AND FILMMAKERS ET AL., DOCUMENTARY
FILMMAKERS STATEMENT OF BEST PRACTICES IN FAIR USE (2005) ...................... 7
CENTER FOR SOCIAL MEDIA, AMERICAN UNIVERSITY, SET OF PRINCIPLES IN FAIRUSE FOR JOURNALISM (2013) ................................................................................ 7
Pamela Samuelson, Unbundling Fair Use, 77 Fordham L. Rev. 2537 (2009)......... 3v

STATEMENT OF INTEREST1
Authors Alliance is a 501(c)(3) nonprofit with over 2,700 members. We
provide resources and guidance on legal issues for authors, such as our legal guide,
Fair Use for Non-Fiction Authors. Our members rely on fair use every day in theirresearch and writing and those uses would be significantly constrained by the panel’sdecision in this case.
The Electronic Frontier Foundation (“EFF”) is a member-supported, nonprofit
civil liberties organization. EFF has worked for over 30 years to protect fundamental
rights in the digital world. With tens of thousands of dues-paying members, EFF
represents the interests of technology users in court cases and policy debates
regarding the application of law to digital technologies. EFF, its members, and thecommunity of technology users they represent have a strong interest in a copyrightsystem that promotes progress by safeguarding freedom of expression and access toknowledge.

1

No counsel for a party authored this brief in whole or in part, and no person otherthan amici or their counsel has made any monetary contributions intended to fundthe preparation or submission of this brief. All parties have consented to the filingof this brief.

1

The American Library Association (“ALA”), established in 1876, is a
nonprofit professional organization of about 50,000 librarians, library trustees, andother friends of libraries dedicated to providing and improving library services andpromoting the public interest in a free and open information society. The Associationof Research Libraries (“ARL”) is an association of 127 research libraries in the
United States and Canada. ARL promotes equitable access to and effective use ofrecorded knowledge in support of teaching and research. ALA and ARL work
collaboratively on copyright issues through the Library Copyright Alliance.
Collectively, these associations represent over 100,000 libraries in the United States.
They share a strong interest in the balanced application of copyright law to digitaluses. Libraries have engaged actively in the fair use landscape for decades, andremain committed to fair use as a crucial tool.
Public Knowledge is a consumer rights organization dedicated to promoting
freedom of expression, an open internet, and access to affordable communications
tools and creative works. As part of this work, Public Knowledge has advocatedbefore Congress, in courts, and before administrative agencies to strengthen andprotect fair use as a backbone of free expression and creativity.

2

INTRODUCTION
This case merits rehearing or rehearing en banc because the panel’s opinion
erred in misreading recent Supreme Court precedent to dramatically narrow thescope of fair use. This misreading threatens many important, established lawful usesof copyrighted works for scholarship, news reporting, and other forms of expression.
I.

THE SUPPREME COURT CONTINUES TO RECOGNIZE FAIRUSE PURPOSES BEYOND CRITICISM AND COMMENTARY.
Fair use is a limitation on copyright, rooted in the First Amendment,2 that hashistorically allowed for a wide variety of uses of copyrighted works. The CopyrightAct identifies some paradigmatic but nonexclusive examples of fair use: “criticism,comment, news reporting, teaching (including multiple copies for classroom use),scholarship, or research,” 17 U.S.C. § 107. Courts have found a variety of other uses
to be fair, such as setting historical context, supporting an argument, or proving apoint. See Pamela Samuelson, Unbundling Fair Use, 77 Fordham L. Rev. 2537,
2571 (2009).
The panel opinion, misreading the Supreme Court’s recent decision in Andy
Warhol Foundation v. Goldsmith, proceeded as if fair use applies only in cases ofartistic criticism and comment. It ignored the many other favored purposes identified
2

Fair use is one of the Copyright Act’s “built-in First Amendment
accommodations.” Golan v. Holder, 565 U.S. 302, 330 (2012).

3

across decades of fair use caselaw—including uses of verbatim excerpts from
copyrighted works as historical references, news reporting, or illustration—that
would easily justify the type of use at issue in this case. By ignoring these other longfavored uses, the panel’s decision essentially converts the Supreme Court’s decisionin Warhol from a nuanced reaffirmation of fair use precedent into a radical rewriteof the law.
Context matters for understanding the Warhol decision. That case was about
whether fair use supported the Warhol Foundation in licensing a Warhol print for amagazine cover, where the print was itself based on a photograph that the plaintiff
also licensed for use on magazine covers. 598 U.S. 508 (2023). The Supreme Court
analyzed only the first fair use factor, “the purpose and character of the use,” whichcalls for an inquiry into how the purpose of the challenged use compares to the
purpose of the original. 17 U.S.C. § 107(1).
Because the two specific uses at issue were similar—licensing portraits of acelebrity for magazine covers—the court understandably focused on the artistic andcreative interaction between Warhol’s print and Goldsmith’s original photograph,particularly the extent to which the Warhol print commented on or criticized thephotograph. Although it was natural for the Court to focus on such uses—those werethe closest to the ones before it—the Court gave no indication that these examples
should encompass the full scope of uses favored under the first fair use factor.

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The opinion instead confirmed a broader range of favored uses. The Court
repeatedly referred to criticism as a nonexclusive example of a favored use. 598 U.S.
at 530, 532, 544-45, 557. The Court also discussed approvingly prior caselaw finding
fair uses that involved no commentary or criticism, including scanning and storing
the full text of books, Authors Guild v. Google, Inc., 804 F.3d 202 (2d Cir. 2015),
and copying portions of a programming interface to use them in a new operating
system, Google, LLC v. Oracle America, Inc., 593 U.S. 1 (2021). The Court evenengaged in such non-critical fair use itself, by reproducing Prince commemorative
magazine covers as evidence of a competitive market for Prince portraits on
magazine covers. Warhol, 598 U.S. at 521. The panel’s interpretation of the first
factor would render all of these uses, including the Supreme Court’s own use,
disfavored under the first factor. Surely this is a bizarre result.
The Warhol Court, emphasizing the continued vitality of its landmark 1994
fair use decision in Campbell v. Acuff-Rose Music, 510 U.S. 569 (1994), described
the first factor analysis as involving an inquiry into “the justification for the use.”
Thus, the “‘central’ question under the first factor” is “whether the new use served
a purpose distinct from the original, or instead superseded its objects.” Warhol, 598
U.S. at 542 (citing Campbell, 510 U.S. at 579). The Campbell decision itself, while
it concerned a parody, established a general framework for approaching the first
factor. See 510 U.S. at 581 (“[P]arody, like any other use, has to … be judged case5

by case, in light of the ends of the copyright law.”). The Warhol Court’s discussionof commentary was an application of this general framework, not a replacement.
The panel opinion did not meaningfully engage with this “central” question,
instead focusing on whether Netflix engaged in sufficient criticism or commentarythat targeted the creative aspects of the original funeral video. The panel wrote that
Defendants simply wished to use Mr. Sepi’s Funeral Video to convey
a new meaning or message—viz., commenting on and criticizing Mr.
Exotic. More specifically, Defendants used the Funeral Video, which
Mr. Sepi created for the purpose of “remembrance,” … for a different
purpose—viz., to comment on Mr. Exotic’s purported megalomania.
Panel Op. at 23. While it is true that the first fair use factor does not support merely
repackaging a work because the subsequent user feels they “can make it better,”
Warhol, 598 U.S. at 547 n.21, there are many acceptable reasons why such a use
might be justified beyond criticism or commentary that targets the underlying work.
And while cases of arguably competing artistic uses such as in Campbell (a pop song
built from the melody and lyrical refrain of an existing song) or Warhol (acommercial portrait built from an existing commercial portrait) may benefit from ananalysis of whether the new work sufficiently targets the creative content of theoriginal to avoid charges of “lazy appropriation,” the Court was also clear that“targeting is not always required.” Id.

6

In focusing narrowly on criticism and commentary, which is only an exampleof transformative use, the panel foreclosed the possibility of other transformative
justifications that favor fair use.
II.

THE PANEL’S UNJUSTIFIED NARROWING OF THE FIRSTFACTOR ENDANGERS MANY ESTABLISHED FAIR USES.
If the panel’s opinion is left standing, it will negatively affect thousands ofcreators who engage in fair uses that do not “target” the creative content of theunderlying work through criticism or commentary and yet, like the Netflix Series,
use those materials for the historical value and newsworthiness of the content they
communicate. Documentary filmmakers, nonfiction writers, journalists, and othercreators rely on fair use in these circumstances. See e.g., ASSOCIATION OF
INDEPENDENT VIDEO AND FILMMAKERS ET AL., DOCUMENTARY FILMMAKERS
STATEMENT OF BEST PRACTICES IN FAIR USE (2005), https://cmsimpact.org/wpcontent/uploads/2016/01/Documentary-Filmmakers.pdf (documenting industrywide best practices for fair use including “quoting copyrighted works of popular
culture to illustrate an argument or point” and “use of copyrighted material in ahistorical sequence.”); CENTER FOR SOCIAL MEDIA, AMERICAN UNIVERSITY, SET OF
PRINCIPLES

IN

FAIR

USE

FOR

JOURNALISM(2013),

https://www.wcl.american.edu/index.cfm?LinkServID=48909486-C7BE-0D76146B0CECC8F293E5 (fair uses of copyrighted material in news reporting or7

analysis may include uses for “illustration” and “historical reference”); AUTHORSALLIANCE,

FAIR

USE

NONFICTIONFOR

AUTHORS(2017),

https://www.authorsalliance.org/wpcontent/uploads/2017/11/AuthorsAllianceFairUseNonfictionAuthors.pdf(“Nonfiction authors regularly use copyrighted material to illustrate, support, or
prove an argument. … [H]ere the material being used is not itself the object of theauthor’s commentary.”)
These creators have developed these best practices by relying on decades ofprecedent—decisions that the panel’s decision conflicts with. For example, in Time,
Inc. v. Bernard Geis Associates, 293 F. Supp. 130 (S.D.N.Y. 1968), the court was
asked to weigh whether it was fair use for the publisher of a book called “SixSeconds in Dallas” to include sketches of President Kennedy’s assassination. The
sketches were derived from clips of the famous Zapruder film. Finding that fair use
favored the book’s publisher, the court was unconcerned that the use made nocomment on the film itself, but emphasized the public benefit of using the film to
aid the book’s argument by having the “fullest information” available, which was
only possible by using the contents of the film. Id. at 146. But using the panel’s
reasoning in this case, because Six Seconds in Dallas did not comment on thecreative or artistic merit of the Zapruder film, its use should be disfavored under fairuse.

8Many other cases before and after have found that historical and informational
uses favor fair use, emphasizing the need not only to report facts, but also to allow
readers and viewers to experience how they were communicated. In 2023, the D.C.
Circuit held that the verbatim copying and online posting of private technicalstandards that had been incorporated into government regulations is transformative
under the first fair use factor because the purpose of the use—explaining the law—
was different from that of the rightsholders’, who sought to explain industry bestpractices. The secondary user did not comment on the standards, and yet the court’s
decision followed, and explicitly applied, the Warhol decision. ASTM v.
Public.Resource.Org., Inc., 84 F. 4th 1262, 1267 (D.C. Cir. 2023).
ASTM is just the latest example of a long tradition of recognizing noncommentary uses as fair. In New Era Publications Intern., ApS v. Carol Pub. Group,
904 F.2d 152, 156 (2d Cir. 1990), the court found that a biographer of L. Ron
Hubbard was justified in using lengthy quotations from Hubbard contained incopyrighted books. The court concluded that this use was favored not because thebiography commented on the creative aspects of Hubbard’s writing, but “to convey
the facts contained therein, and not for their expression.” Id. at 156.
In this case, the panel specifically rejected such a rationale for a very similar
use: “Defendants used the Funeral Video . . . to comment on Mr. Exotic’s purported
megalomania . . .” by presenting his words, tone, and demeanor at his husband’s

9funeral. Panel Op. at 23. The panel concluded that this type of use was not favored
under the fair use analysis because it contained no comment on the “creativedecisions or intended meaning” of the funeral video itself. Panel Op. at 21.
Many other cases reject the panel’s approach. In Bill Graham Archives v.
Dorling Kindersley, 448 F. 3d 605 (2d Cir. 2005), the Second Circuit approved ofreuse of Grateful Dead concert posters in a book about the history of the band.
Though the books contained no comment on the creative content of the posters
themselves, the court found that the first factor favored the use because the publisher
used the “images as historical artifacts to document and represent the actual
occurrence of Grateful Dead concerts.” Id. at 609. In Sofa Entertainment v. Dodger
Productions, the use of a seven-second clip from the Ed Sullivan show in a musicalabout the band “The Four Seasons” was “heavily favor[ed]” under the first factor
because of its use as a “biographical anchor,” making no commentary at all about
the show itself. 709 F. 3d 1273, 127 (9th Cir. 2013). In Hofheinz v. A & E Television
Networks, the court found that a TV biography that used a short clip of movie starPeter Graves from one of his earliest films was justified not because it commented
on the original film but because it “enabl[ed] the viewer to understand the actor’smodest beginnings in the film business.” 146 F. Supp. 2d 442, 446–47 (S.D.N.Y.
2001). See also Elvis Presley Enterprises, Inc. v. Passport Video, 349 F.3d 622, 629(9th Cir. 2003) (defendant’s use of television clips featuring Elvis was10

“transformative because they are cited as historical reference points in the life of aremarkable entertainer”), overruled on other grounds in Flexible Lifeline Sys., Inc.
v. Precision Lift, Inc., 654 F.3d 989, 995 (9th Cir. 2011).
While the events leading up to the funeral scene in Tiger King do not carry
the same historical significance as President Kennedy’s assassination or the broad
cultural significance of the Grateful Dead, they do bear on an issue of public interestand debate, and the funeral clip serves as an important historical marker andbiographical anchor. See Alan Yuhas & Maria Cramer, What Happened After ‘Tiger
King’, NY TIMES, Oct. 20, 2020, https://www.nytimes.com/article/tiger-kingupdates.html. The panel gave this historical use no weight because it did not“comment” on the funeral video itself. Panel Op. at 21. That approach conflicts withdecades of precedent and established practice.
CONCLUSION
If the Supreme Court in Warhol had meant to overrule such a significant bodyof law that protects so much expressive activity, it would have said so. We therefore
ask the court to grant the petition for rehearing to ensure that the panel, or the fullcourt, has a chance to evaluate the exceptional importance of this issue.

11Dated: May 2, 2024

Respectfully submitted,/s/ Mitchell L. Stoltz
Mitchell L. Stoltz
ELECTRONIC FRONTIER
FOUNDATION
815 Eddy Street
San Francisco, California 94109
mitch@eff.org(415) 436-9333
Dave Hansen
AUTHORS ALLIANCE
2705 Webster St. #5805
Berkeley, CA 94705
dave@authorsalliance.org
Counsel for Amici Curiae

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CERTIFICATE OF COMPLIANCE
Pursuant to Fed. R. App. P. 32(g)(1), I certify as follows:1.

This Brief of Amici Curiae Authors Alliance, Electronic Frontier

Foundation, American Library Association, Association of Research Libraries, andPublic Knowledge in Support of Defendants-Appellees Limited Petition for Partial
Panel Rehearing and Rehearing En Banc, with the type-volume limitation of Fed. R.
App. P. 29(b)(4) because this brief contains 2,488 words, excluding the parts of thebrief exempted by Fed. R. App. P. 32(f); and2.

This brief complies with the typeface requirements of Fed. R. App. P.

32(a)(5) and Circuit Rule 32(A) and the type style requirements of Fed. R. App. P.
32(a)(6) because this brief has been prepared in a proportionally spaced typeface
using Microsoft Word 365, the word processing system used to prepare the brief, in
14-point font in Times New Roman font.
Dated: May 2, 2024

/s/ Mitchell L. Stoltz
Mitchell L. Stoltz

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CERTIFICATE OF DIGITAL SUBMISSION
I hereby certify that with respect to the foregoing:(1)

all required privacy redactions have been made per 10th Cir. R. 25.5;(2)

if required to file additional hard copies, that the ECF submission is anexact copy of those documents;(3)

the digital submissions have been scanned for viruses with the mostrecent version of a commercial virus-scanning program, Virus Total,
updated May 2, 2024, and according to the program are free of viruses.

Dated: May 2, 2024

/s/ Mitchell L. Stoltz
Mitchell L. Stoltz

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CERTIFICATE OF SERVICE
I certify that on this of May 2, 2024, I electronically filed the foregoing Briefof Amici Curiae using the Court’s CM/ECF system which will send notification ofsuch filing to all parties of record.
Dated: May 2, 2024

/s/ Mitchell L. Stoltz
Mitchell L. Stoltz

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