Filmmakers Express Concern Over Impending Death of ‘Biographical Anchor’ Fair Use Basis

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. Show Notes: Scott 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.”   Jamie Thanks for having me, Scott.   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.   Jamie 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.   Scott 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.   Jamie The concerns from the parties that filed briefs requesting review of this decision all ex...