Transformative Use and Justification after Warhol

Leval, Circuit Judge:

Plaintiff Jana Romanova, a professional photographer, appeals from the judgment of the United States District Court for the Southern District of New York. [Romanova, a professional photographer who relies on licensing fees for her income, authored a photograph of a woman with two snakes. She licensed National Geographic to publish it in September 2017 and registered the work with the Copyright Office shortly after. Defendant Amilus Inc. operates a subscription website that also sells merchandise. In December 2017, Amilus copied Plaintiff’s photograph into an online article featuring ten pet photographs apparently taken from other publications, describing itself as continuing a “semi-regular series” on pet photography online. Plaintiff’s photograph was the only one depicting snakes. Plaintiff discovered the unauthorized use in December 2019 and twice demanded that Amilus take it down; Amilus never responded. She sued in October 2022. Amilus was served but never appeared, and a Certificate of Default was entered. Rather than grant Plaintiff’s motion for default judgment, the district court held that Amilus’s use was a fair use and dismissed the complaint with prejudice on that ground.]

[Boilerplate discussion of the purpose of copyright and fair use omitted] The Supreme Court has clarified that fair use is an affirmative defense to a claim of copyright infringement, the proponent of which bears the burden of justifying its taking. See Warhol, 598 U.S. at 547 n.21 (“Fair use is an affirmative defense, and [the proponent] bears the burden to justify its taking…”); Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 590 (1994).

Notwithstanding that the Defendant, having defaulted, did not raise the defense of fair use, the district court nonetheless considered the defense on the Defendant’s behalf and concluded that the applicability of the fair use doctrine was evident on the face of the complaint. The district court found that Defendant’s publication of Plaintiff’s Photograph communicated a message that differed from what was originally intended by Plaintiff’s image. According to the district court, the message of Plaintiff’s Photograph, as published in National Geographic, was “to showcase persons in [Plaintiff’s] home country of Russia that kept snakes as pets, specifically to capture pet snakes in common environments that are more associated with mainstream domesticated animals.” In contrast, the different message found by the district court to have been communicated by Defendant’s publication of Plaintiff’s image was “the ever-increasing amount of pet photography circulating online.” The fact that Defendant’s publication of Plaintiff’s image in the district court’s view communicated a message different from the message conveyed by Plaintiff led the district court to conclude that Defendant’s unauthorized publication of Plaintiff’s Work was a fair use and not an infringement.

We believe that the district court’s analysis depended on a misunderstanding of the fair use doctrine and of how the facts of the case relate to the doctrine. We see no basis in the facts alleged in the complaint for a finding of fair use. We explain below why this is so.

2. Fair Use

Section 107 identifies the concern of Factor One as “the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes.” 17 U.S.C. § 107(1). In Campbell v. Acuff-Rose Music, Inc., the Supreme Court explained what purposes of copying would favor a finding of fair use under the first factor. 510 U.S. 569 (1994). The Court focused on two considerations.

The Court identified the first inquiry as whether the copy “supplant[s]” the original—whether, in the terms used by Justice Story in Folsom v. Marsh, it merely “supersede[s] the objects” of the original – “or instead adds something new, with a further purpose or different character, altering the first with new expression, meaning, or message; it asks, in other words, whether and to what extent the new work is ‘transformative.’ ” Campbell, 510 U.S. at 579. Transformative uses are favored over those that risk to serve as substitutes for the original. Id.

The most paradigmatically recognized transformative uses are rarely the subject of litigation, so that there are few precedential cases discussing them. These include parodies, which quote extensively from the subject of the parody for the purpose of ridiculing it; limited quotation from books in a book review for the purpose of showing potential readers a glimpse of the subject’s writing style; and biographical works that quote from the speeches, published writings, and unpublished papers of noted public figures for the purpose of revealing their attitudes, thoughts, and biases. See, e.g., New Era Publications Int’l, ApS v. Henry Holt & Co., 695 F. Supp. 1493, 1523 (S.D.N.Y. 1988) [hereinafter “Holt”] (finding fair use where heirs of a famous public figure sued to suppress a biography which quoted from the subject’s unpublished diary entries and letters to show his biases, his dishonesty, and his cruelty), aff’d, 873 F.2d 576 (2d Cir. 1989). Perhaps in part because of the clarity of what will be the result of litigation of such claims, and perhaps also because authors benefit from the publication of book reviews about their books, authors do not often sue to suppress such uses.

Second, the Campbell Court stressed the importance to the fair use question of a “justification” for the copying of the original, which might depend on the nature of the message communicated through the secondary user’s copying of the original. The Court illustrated the point by distinguishing parody, which the Campbell defendant claimed to have employed, from satire:

Campbell, 510 U.S. at 579–81.

This passage underscored the importance for a fair use finding of whether the copying work served as a criticism or commentary on the original work or its author as justification for the taking. Probably because Campbell had expressed the point in terms of parodies, and the Campbell defendant claimed that its copying use was a parody, courts at first assumed that this passage applied only to parodies, and paid little attention to it.

In Google Books, we quoted the passage from Campbell discussing the need for justification. We commented,

Google Books, 804 F.3d at 215; see Shyamkrishna Balganesh & Peter S. Menell, Going “Beyond” Mere Transformation: Warhol and Reconciliation of the Derivative Work Right and Fair Use, 47 COLUM. J. L. & ARTS 413, 436 (2024) (“The key to operationalizing the first fair use factor… lies in examining the justification offered by the copier for the use.”).

In any event, the Supreme Court’s ruling in Warhol made clear that Campbell’s requirement of justification is not applicable only in cases of claimed parody, but applies generally to all claims of fair use. [The Court explained the facts in Warhol.]

A seven to two majority of the Court decided in favor of Goldsmith. Justice Kagan, joined by the Chief Justice, wrote a spirited dissent, asserting that Warhol’s treatment was a fair use. See id. at 558–93 (Kagan, J., dissenting). The majority’s rejection of the dissent’s arguments does much to clarify the governing fair use standards, as they bear on the case now before us.

The majority concluded that the Foundation’s use of the original was not transformative. Warhol, 598 U.S. at 526 (majority opinion). It was undisputed that the Orange Prince portrait, in utilizing the Goldsmith photo of Prince, did not comment on, or implicitly critique, Goldsmith or her photograph.¹ Id. at 540. Warhol simply used the Goldsmith photo-portrait as a raw material from which he produced his Prince portraits, making various alterations to the original. The changes he made to Orange Prince consisted primarily of printing the Goldsmith image of Prince in high contrast, erasing the middle greys; eliminating the neck, shoulders and torso, leaving the head alone; straightening the head to eliminate a slight tilt in the original; and staining the image a vivid orange. Id. at 517 n.1; id. at 562, 564–65 (Kagan, J., dissenting).

The dissenting opinion deemed those changes to be of great importance. In the dissent’s view, the elimination of middle greys converted Goldsmith’s image of an insecure, frail, and vulnerable human being into an invulnerable icon, a product of the celebrity machine; the elimination of the neck and torso, together with the straightening of the head, and the orange coloration, further served that change of image, presenting Prince’s disembodied head as if larger than life. Id. at 566, 573–74. The dissent considered these changes to be powerfully transformative, completely changing the nature of the being depicted. Id. at 565. As for the fact that the Warhol image did not critique or comment on the Goldsmith work—which, under the standards of Campbell, would have challenged the copier to show another justification for the copying—the dissent concluded that the Supreme Court had implicitly disavowed and abandoned that part of the Campbell standards in Google LLC v. Oracle America, Inc., 593 U.S. 1 (2021) [hereinafter “Google”], in which the Court found fair use in a copying that that did not comment on the original. Warhol, 598 U.S. at 580–81 (dissenting opinion).

The Supreme Court majority firmly rejected all of the dissent’s arguments.² The majority acknowledged that Warhol made changes but found little significance in them for purposes of deciding whether the use was transformative. See id. at 545 (majority opinion) (“The purpose… is, still, to illustrate a magazine about Prince with a portrait of Prince.”). Further undermining any claim of justification for copying, the majority stressed that the purpose of the Foundation’s use of Warhol’s Prince portrait, like Goldsmith’s photograph, was licensing for use by a magazine. Id. at 545. Using Justice Story’s terminology, the effect of the Foundation’s license was to “supersede” the original from which it was copied. Id. at 536. The majority also emphatically rejected the dissent’s suggestion that the finding of fair use in the Google case represented a disavowal of the Campbell Court’s insistence on the importance of commentary on the original as furnishing justification for copying it.³ Id. at 547 n.21. The Warhol majority explicitly reaffirmed what the Court had said in Campbell concerning the importance of commentary as justification for copying, this time making clear that those observations had broad applicability and were not limited to claims of parody. Id. at 542; see also id. at 547 (emphasizing that the Foundation “offers no independent justification, let alone a compelling one, for copying the photograph, other than to convey a new meaning or message,” which, under the standards of Campbell, fails to justify copying).

We do not suggest that critique or commentary on the original (or its author) are the only uses that will furnish a justification ultimately qualifying as fair use.⁴ Courts have found other justifications—mostly in circumstances where the copying provided information to the public about the copied work, or enabled the furnishing of valuable information on any subject of public interest, or rendered a valuable service to the public, in most cases limited to circumstances in which the benefit was provided without allowing public access to the copy, thus assuring that the copied work not serve as a substitute for the original in the marketplace.

Examples of rulings in which the justification for copying lay in providing the public with information about the works or their authors include:

• In Google Books, 804 F.3d at 214–18, and Authors Guild, Inc. v. HathiTrust, 755 F.3d 87, 97 (2d Cir. 2014) [hereinafter “HathiTrust”], we found justification for the copying of millions of copyrighted books into a computerized database that would enable potential readers to identify books that used terms of interest to them (without allowing them to read any substantial passages of the books).

• In Google Books, in addition, we found justification for publishing fragmentary snippets from the books to help potential readers determine, in addition to whether a book used a term of interest, whether it also used the term in a context suggesting that the book was likely to be of interest to the reader (again without allowing access to more than the fragmentary snippets). 804 F.3d at 217–18.

• In Holt, as discussed above, the district court found fair use where heirs of a famous public figure sued to suppress a biography which quoted from the subject’s unpublished diary entries and letters to show his biases, his dishonesty, and his cruelty. 695 F. Supp. at 1523.

• In a child custody litigation, an unpublished autobiography written by a father was introduced into evidence by the mother to show through the husband’s admissions in the text of his book that he had murdered his father and therefore should be deemed an unfit parent. Bond v. Blum, 317 F.3d 385, 397 (4th Cir. 2003), abrogated in part on other grounds by Kirtsaeng v. John Wiley & Sons, Inc., 579 U.S. 197 (2016) (abrogating the district court’s ruling on attorney’s fees without addressing ruling on fair use).

Precedents finding justification for copying where the copying work provided a service relating to the copyrighted work include:

• In Sony Corporation of America v. Universal City Studios, Inc., 464 U.S. 417, 442–56 (1984), the Supreme Court found justification and fair use in the utilization of new technology that allowed copying of televised transmissions when used noncommercially by a person who had purchased entitlement to watch the transmission at the time of its transmittal to privately watch it (once only) at a more convenient later time.

• In Kelly v. Arriba Soft Corp., 336 F.3d 811, 822 (9th Cir. 2003), and Perfect 10, Inc. v. Amazon.com, Inc., 508 F.3d 1146, 1165 (9th Cir. 2007), the Ninth Circuit found fair use in an internet search engine’s copying of images visible on the internet into tiny “thumbnails” to serve as links permitting a user to go to a site where information about the original was available (in circumstances where the tiny size and low resolution of the thumbnails made them unsuitable for use for decorative purposes as substitutes for the originals that they copied).

• In HathiTrust, 755 F.3d at 101–03, we further found justification for the conversion of copyrighted works into formats readable by the blind (where substitution was unlikely to occur because the relevant market was sufficiently small that rights holders were unlikely to undertake to exploit the copyright in this manner for profit).

• In American Geophysical Union v. Texaco Inc., the district court and our court each expressed support for the proposition that it might be a fair use to copy a scientific writing onto a durable material to better hold up than paper in the inhospitable conditions of a laboratory. See 802 F. Supp. 1, 14 (S.D.N.Y. 1992), aff’d, 60 F.3d 913, 923 (2d Cir. 1994).

Rulings in which the justification for copying lay in the furnishing of valuable information on a subject of public interest or a service important to the public have included:

• In Google Books, a further function enabled by the copying of millions of books into Google’s database – the “ngrams” feature – was the furnishing of historical charts that provided comparisons of English language usage from decade to decade (again without allowing the reading of any of the copied works). 804 F.3d at 217, 230.

• In Swatch Grp. Mgmt. Servs. Ltd. v. Bloomberg L.P., 756 F.3d 73, 82, 86 (2d Cir. 2014), the dissemination by a financial reporting service of a private copyright-protected conference call between a company’s management and selected brokers about the company’s recent performance served to make information critical to securities markets available to investors and analysts (where the value of the copied recording lay not in its copyright-protected manner of expression but in the unprotected information it supplied).

• In Núñez v. Caribbean Int’l News Corp., 235 F.3d 18, 22 (1st Cir. 2000), the First Circuit found justification and fair use in the copying in a local newspaper of a copyright-protected photograph of the winner of a beauty contest, which photograph had been deemed scandalous, causing the subject to lose her title. The justification was that the copying enabled the public to form an opinion whether the photograph merited the punishment inflicted on its account (where the low quality of the reproduction in newsprint made it unsuitable to serve as a decorative photograph in substitution for the original). Id. at 22, 25.

• In A.V. ex rel. Vanderhye v. iParadigms, LLC, 562 F.3d 630, 645 (4th Cir. 2009), the Fourth Circuit found fair use in the copying of student theses into a database where the purpose of the copying was to help academic institutions detect whether student theses were plagiarized (without allowing the public to read the copied texts).

• In Time Inc. v. Bernard Geis Associates, 293 F. Supp. 130, 131–32, 138 (S.D.N.Y. 1968), the owner of the copyright in the famous Zapruder film showing the fatal shooting of President John F. Kennedy sued the publishers of a book about the assassination in which charcoal sketches copied from the frames of the Zapruder film were published to illustrate the book’s theory of the assassination. The court found for the defendants, concluding that this was a fair use. Id. at 146. The decision appeared to rest on two principal factors: (i) the “public interest in having the fullest information available on the murder of President Kennedy;”⁵ and (ii) that, notwithstanding public disclosure of the copies made by the defendants, there “seem[ed to be] little, if any, injury to plaintiff, the copyright owner.”⁶ Id.

There may well be other effective justifications. Like the rest of the fair use analysis, whether a justification is sufficient “calls for case-by-case analysis” and “is not to be simplified with bright-line rules.” Campbell, 510 U.S. at 577.

We turn now to examine how the Supreme Court’s teachings in the Campbell and Warhol cases bear on the district court’s reasoning in our case in finding that the Defendant’s unauthorized publication of Plaintiff’s photograph was a fair use. We find two significant errors in the district court’s reasoning. The first relates to the Supreme Court’s explanations in Campbell, and again in Warhol, stressing the importance of a transformative purpose as justification for the copying – that the copying transmit a message that differs from the message communicated by the original. As explained below, the district court misunderstood the meaning of this test and erred in concluding that Defendant’s copying of Plaintiff’s photograph transmitted any message other than the message of Plaintiff’s photograph.

Second, the Campbell Court explained and the Warhol Court reemphasized the importance to fair use of a justification for the copying. The district court made no finding that could satisfy the second requirement, and we can think of none. No aspect of the statutory factors favors a finding of fair use.

As for whether Amilus’s copying of the Plaintiff’s woman and snakes image had a transformative purpose, the district court believed it did because, in the district court’s view, it communicated the fact that there was a growing trend on the internet to publish pet photos—a message not communicated by the original image. This misunderstood the test for transformativeness. The test turns on whether the copying of the original communicates a message that differs from the message of the original – not whether the copier separately declares such a message. Amilus’s republication of the snake image did not show that there was a growing trend to publish pet photos online. The only support in its publication for that proposition was Amilus’s statement to that effect. Neither Campbell nor Warhol (nor any other precedential opinion discussing transformativeness) stated or implied that a copying would be deemed transformative, favoring a finding of fair use, merely because the copier, separate from the act of copying, asserted a fact about the original not asserted by it. Copying that communicates a message not communicated by the original favors fair use because it “promote[s] the Progress of Science,” U.S. CONST. art.1, § 8, cl. 8, by advancing knowledge. Notwithstanding what Defendant said about Plaintiff’s image, its unauthorized copying and distribution of the image communicated no message other than what the original image communicated. It did nothing to further the goals of copyright. In Justice Story’s words, it merely “supersede[d] the objects” of the original creation. Folsom, 9 F. Cas. at 348.

The second flaw in the district court’s reasoning was its failure to heed Campbell’s insistence, later reiterated in Warhol, that there must be justification for copying, which, but for the finding of fair use, would likely infringe the exclusive rights of the rights holder.⁷ As reviewed above, justification is often found when the copying serves to critique, or otherwise comment on, the original, or its author, but can also be found in other circumstances, such as when the copying provides useful information about the original, or on other subjects, usually in circumstances where the copying does not make the expressive content of the original available to the public.

The only reason given by the district court to explain its conclusion that Defendant’s republication of Plaintiff’s copyright-protected photograph should be deemed a fair use was Defendant’s statement that it perceived a growing trend on the internet to publish photos of people with pets. Such an observation, even assuming it to be true, does not justify unauthorized copying and distribution of copyright protected expression.

Little would remain of an author’s copyright protection if others could secure the right to copy and distribute a work simply by asserting some fact about the copied work. Websites could freely copy and sell the new novels of others to their subscribers, undermining the author’s exclusive rights, simply by declaring, “Our editors have observed a recent increase in new novels about young love in college settings. By joining our book club for only $20 per year, you will immediately get a link to the newest such novel, and every month thereafter a new novel in the most current trend.” See Warhol, 598 U.S. at 529 (warning that “an overbroad concept of transformative use, one that includes any further purpose, or any different character, would narrow the copyright owner’s exclusive right to create derivative works”). The district court pointed to nothing in Defendant’s copying of Plaintiff’s work that could furnish a justification for the Defendant’s copying and redistribution of it. Considering the full range of reasons which courts have found to provide justifications, we see nothing in the information given by the complaint that could furnish such a justification. Defendant’s copy did not communicate any criticism or commentary on the original or its author, or indeed on any other subject (other than what was communicated by the original). What it did do was commercial exploitation of Plaintiff’s work, selling it to its own customers for its own profit, competing in a market that the copyright law reserves exclusively to Plaintiff.

For all the reasons explained above, the first statutory fair use factor decidedly favors the Plaintiff. Not only did the Defendant copier flunk the tests of transformativeness of the copying and of need to show justification for the copying, but its copying was done for a commercial purpose, which, while not dispositive, is more helpful to Plaintiff than to Defendant.

Nor do the second, third, and fourth fair use factors specified by § 107 give any support to a finding of fair use. As for the second factor—the Photograph is an artistic work and the message it communicates is identically replicated by the message communicated by the Defendant’s copy. Nothing about the second factor favors a finding of fair use. As for the third factor – “the amount and substantiality of the portion used [in the copying] in relation to the copyrighted work as a whole,” 17 U.S.C. § 107(3) – Defendant took the entirety of Plaintiff’s work. While that fact alone is not fatal to a claim of fair use, Defendant cannot escape liability on the ground that it took only a small part of the protected work. As for the fourth factor – “the effect of the use on the market for or value of the copyrighted work,” 17 U.S.C. § 107(4) – Defendant’s unauthorized distribution of Plaintiff’s Work diminished the value of Plaintiff’s copyright by diminishing the likelihood that others would seek and pay for a license to publish the Photograph. So far as we are aware, no statutory factor and no argument favored a finding of fair use. Nor do the four statutory factors in the aggregate support a finding of fair use. Because no valid reason supported the district court’s conclusion that Defendant’s copying of Plaintiff’s work was a fair use, the court had no reason to deny Plaintiff’s motion for default judgment. We therefore remand with instructions to grant the Plaintiff’s motion for the entry of default judgment.

HOLMES, Chief Judge.

Plaintiffs-Appellants, Whyte Monkee Productions, LLC (“Whyte Monkee Productions”) and Timothy Sepi, appeal from the District Court for the Western District of Oklahoma’s order granting summary judgment to Defendants-Appellees, Netflix, Inc. (“Netflix”) and Royal Goode Productions, LLC (“Royal Goode”) (collectively, “Defendants”). In March 2020, Defendant Netflix released Tiger King: Murder, Mayhem and Madness (“Tiger King”), a seven-part documentary-style series produced by Defendant Royal Goode. Included in the series are short clips from eight videos (“the Videos”) that Mr. Sepi filmed. Mr. Sepi filmed seven of the videos while he was working for the Gerald Wayne Interactive Zoological Park (“the Park”).

The eighth video—Travis MM Funeral Ceremony (“Funeral Video”)—was shot after Mr. Sepi terminated his employment relationship with the Park. Following the release of Tiger King, Mr. Sepi registered the eight videos for copyright protection, either under his own name or the name of Whyte Monkee Productions. Plaintiffs then sued Netflix and Royal Goode for copyright infringement, contending that Plaintiffs owned the copyrights in the Videos and that Defendants had used clips of those videos without permission.

On April 27, 2022, the district court granted summary judgment to Defendants. First, the district court held that seven of the videos were works made for hire under § 201(b) of the Copyright Act, and thus Mr. Sepi did not own the copyrights in the works. Second, the district court held that Defendants’ use of the eighth video was fair use that did not infringe upon Mr. Sepi’s copyright.

Joseph Maldonado-Passage, also known as Joe Exotic (“Mr. Exotic”), founded the Gerald Wayne Interactive Zoological Park in Wynnewood, Oklahoma. The Park housed tigers, lions, and other exotic animals and was open to the public for tours. The Park also maintained a studio that was used to produce a web series called Joe Exotic TV. Joe Exotic TV was primarily an unscripted series featuring video footage from around the Park and skits that Mr. Exotic invented. In early 2015, Joe Exotic TV was produced by Rick Kirkham, who oversaw the studio operations with a team of four people. [The court described the terms of Mr. Sepi’s employment at the Park and the operation of Joe Exotic TV.]

Until his resignation in August 2016, Mr. Sepi continued to film and produce videos for Joe Exotic TV. During and after Mr. Sepi’s tenure at the Park, filmmakers associated with Defendant Royal Goode were shooting footage at the Park and editing what would eventually become the Tiger King series. In addition to its own footage, Royal Goode licensed film clips from Mr. Exotic and Jeffrey Lowe—the Park’s new owner as of approximately February 2016—including the works that Mr. Sepi now claims to own.

While creating Tiger King, Royal Goode emailed Mr. Sepi to obtain his assistance in accessing video footage that was apparently located at the Park. Royal Goode also offered to compensate Mr. Sepi for his efforts. Mr. Sepi responded to Royal Goode’s email, telling them to contact Mr. Exotic because he no longer worked there. He also did not assert any ownership interest in any footage at that time.

[In March 2020 Netflix released Tiger King, a seven-episode series running about 312 minutes. It included clips from seven videos Mr. Sepi filmed while employed at the Park.]

Mr. Sepi shot the eighth video—Travis MM Funeral Ceremony—after he terminated his employment relationship with the Park. The video is approximately twenty-three minutes and fifty-two seconds long and documents the funeral of Mr. Exotic’s husband, Travis Maldonado. The Funeral Video depicts guests arriving at the funeral, Mr. Exotic giving a eulogy, brief remarks by others—including Cheryl Maldonado, Travis’s mother—and the showing of a memorial video. Mr. Sepi testified that he shot the video by placing the camera on a tripod and leaving it running. The camera lens is aimed primarily at the area around a tabletop lectern, where the guests arrived and the remarks were later offered. For brief periods, the camera lens pans to a video monitor where the memorial video is shown and to capture certain funeral guests facing the lectern. The video was livestreamed on the Joe Exotic TV YouTube page and remained there after the funeral.

Royal Goode included in Tiger King a clip from the Funeral Video showing portions of Mr. Exotic’s eulogy interspersed with other footage, including comments from Mr. Maldonado’s mother that are critical of Mr. Exotic. At times Ms. Maldonado’s comments are played directly over visuals of Mr. Exotic’s remarks, with her stating, “He has to do dramatics, you know, drama,” and “He was even acting there.” The clip appears in Episode Five of Tiger King and lasts approximately one minute and six seconds. Episode Five runs for forty-two minutes and forty-three seconds. Therefore, the clip of the Funeral Video amounts to approximately 2.58% of Episode Five and 0.35% of the Tiger King series.

Following the release of Tiger King, Mr. Sepi obtained copyright registrations for the eight videos. Mr. Sepi has never licensed any of his work. [Plaintiffs sued in September 2020. The district court granted summary judgment, holding the seven videos were works made for hire.] The district court then determined that “a reasonable juror could conclude that the Travis MM Funeral Ceremony video contains elements of originality that are subject to copyright.” Nonetheless, the district court concluded that Defendants’ use of the Funeral Video was fair use that did not infringe upon Mr. Sepi’s copyright because it determined that each of the four statutory fair-use factors weighed in Defendants’ favor.

We originally heard oral arguments in the case on March 22, 2023. Approximately one year later, we published our decision. In the opinion, we affirmed the district court’s judgment as to the first seven videos but reversed the court’s judgment as to the Funeral Video and remanded to the court for further proceedings. However, following Defendants’ limited petition for partial panel rehearing and rehearing en banc, we vacated that opinion and granted in part the petition for panel rehearing.

Plaintiffs argue that the district court erred in its fair-use analysis of Defendants’ use of the Funeral Video. In particular, Plaintiffs contend that under the statutory fair-use factors, the [Defendants’] streaming use is unfair and contrary to the purposes of copyright.” In support of their position, Plaintiffs point to the Supreme Court’s recent decision in Warhol, which allegedly “supports reversal of the fair-use decision below.” …

Plaintiffs assert that the district court “erred with respect to each of the statutory fair-use factors” when determining whether Defendants’ use of the Funeral Video was fair use. Specifically, Plaintiffs claim that the first statutory factor counsels in their favor because Defendants’ “streaming use is as commercial as it gets and is not transformative because the use makes no commentary upon the work [(i.e., the Funeral Video)] itself.” Furthermore, Plaintiffs argue that the second and third statutory factors point in their favor, as “the work was not published, is not factual,” and “the heart of the work was taken.” Finally, Plaintiffs allege that the fourth factor counsels in their favor, as “there was no showing below, on this affirmative defense, of a lack of market harm.” Plaintiffs contend that this conclusion is only bolstered by the Supreme Court’s recent decision in Warhol, which allegedly “supports reversal of the fair-use decision below.”

We disagree. All four factors weigh in favor of fair use, so we affirm the district court’s grant of summary judgment as to the Funeral Video. [Boilerplate discussion of fair use omitted] In assessing whether Defendants’ use of the Funeral Video is a fair use, each of the four statutory factors must be considered and the results weighed together. See Campbell, 510 U.S. at 578; Warhol, 598 U.S. at 551. In weighing the factors, none may “be treated in isolation, one from another.” Campbell, 510 U.S. at 578; see also Restatement Of The Law, Copyright § 6.12 cmt. p (Am. L. Inst. Tentative Draft No. 6, 2025) (“[E]ach of the four statutory factors bears on, at least in part, essentially the same question—the prospect of market substitution—but from a different vantage.”).

We agree with the district court that all four factors favor fair use. We therefore affirm the district court’s grant of summary judgment as to the Funeral Video.

[The court began with an extended restatement of the first factor as explained in Campbell and Warhol: that the inquiry asks whether the new work merely supersedes the original or adds something with a further purpose or different character; that adding something new is not by itself enough; that the § 107 preamble supplies illustrative but not limitative examples; and that transformativeness is a matter of degree, weighed against commercialism. It then turned to justification.]

One significant consideration that comes into play in the first-factor analysis is the secondary work’s justification for using the original work. See Warhol, 598 U.S. at 531; see also Balganesh & Menell, supra, at 436 (“The key to operationalizing the first fair use factor… lies in examining the justification offered by the copier for the use.”). The Warhol Court explained that a secondary work’s use of a copyrighted work may be “justified” in two senses: a “broad sense,” and a “narrower sense.” 598 U.S. at 531–32. Whether justified in the broad or narrower sense, “the question of justification is one of degree.” Id. at 532; cf. Balganesh & Menell, supra, at 437 (“The question remains how powerful, or persuasive, is the justification, because the court must weigh the strength of the secondary user’s justification against factors favoring the copyright owner.” (quoting Pierre N. Leval, Toward A Fair Use Standard,).

In the “broad sense,” a secondary work that “has a distinct purpose is justified because it furthers the goal of copyright”—viz., “to promote the progress of science and the arts, without diminishing the incentive to create.” Warhol, 598 U.S. at 531 (emphasis added). The Second Circuit previously expressed a similar point:

Authors Guild v. Google, Inc., 804 F.3d 202, 214 (2d Cir. 2015). In other words, the greater the degree to which a secondary use may be deemed transformative the more likely that use will be deemed justified in the broad sense.

On the other hand, a secondary use that shares the same or similar purpose as the original work is more likely to be a “substantial substitute” for the copyrighted work—“which undermines the goal of copyright”; accordingly it is unlikely to be deemed justified in the broad sense. Warhol, 598 U.S. at 531–32. If such a use is to be justified at all, it likely must be in a “narrower sense.” Id. at 532. In this sense, “a use may be justified because copying is reasonably necessary to achieve the user’s new purpose.” Id. at 532; cf. Balganesh & Menell, supra, at 437 (“[T]he mere identification of a justification is insufficient. It needs to be ‘compelling’ and is thus a matter of degree and assessment.”).

The Warhol Court elaborated by pointing to parody as an example where the secondary use of the copyrighted work may be justified in this narrower sense because of the essence of that use: that is, the essence of parody is to target the original work for imitation to achieve some comic effect—specifically, in order for the user to effectuate its parody purpose, the user needs to target the original work. See Warhol, 598 U.S. at 532; see also Campbell, 510 U.S. at 580–81 (“Parody needs to mimic an original to make its point, and so has some claim to use the creation of its victim’s (or collective victims’) imagination…” (emphasis added)). Thus, as to parody, the independent justification for copying the original work is baked into the secondary use itself. “Similarly,” the Court reasoned, “commentary or criticism that targets an original work may have compelling reason to “ ‘conjure up’ ” the original by borrowing from it.” Warhol, 598 U.S. at 532 (quoting Campbell, 510 U.S. at 588). More specifically, the Court noted that a book review needs to draw from originally copyrighted material (i.e., the book being reviewed) “because the review targets the material for comment or criticism.” Id. at 532 n.7.⁸

However, it bears underscoring that a secondary use that involves copying from an original work may be justified in a narrower sense in a way that does not involve targeting or directly invoking the original work through parody, commentary, or the like. See Google, 593 U.S. at 30–31 (noting that the use was justified because it copied the original software code “only insofar as needed” to “provide[ ] a new collection of tasks… in a distinct and different computing environment”); cf. Warhol, 598 U.S. at 547 n.21 (noting that “targeting is not always required”); id. at 533 & n.8 (discussing the “example” of Google as providing “some other justification for copying”).

Elaborating on the concept of justification in this narrower sense, the Supreme Court has stated: “An independent justification… is particularly relevant to assessing fair use where an original work and copying use share the same or highly similar purposes.” Id. at 532. That is because in such circumstances the secondary use is more likely to be a “substantial substitute” for the copyrighted work—“which undermines the goal of copyright.” Warhol, 598 U.S. at 531–32. On the other hand, it seems to logically follow that an independent justification in the narrower sense is less likely to be relevant when the purpose of the secondary use is so distinct from the original copyrighted work that it is transformative—at least when it is transformative to a significant degree. That is because such a secondary use is more likely to be justified in the broad sense because its transformativeness itself advances the goals of copyright. See Authors Guild, 804 F.3d at 214 (“[T]ransformative uses tend to favor a fair use finding because a transformative use is one that communicates something new and different from the original or expands its utility, thus serving copyright’s overall objective of contributing to public knowledge.”).

One other significant consideration that is weighed in the evaluation of the first factor is whether the secondary use is commercial or lacking in commercial purpose (i.e., a not-for-profit purpose). See Warhol, 598 U.S. at 531; Campbell, 510 U.S. at 584; Google, 593 U.S. at 32. Specifically, a secondary use’s commercial character must be weighed against the degree to which the use is transformative, and “the more transformative the new work, the less will be the significance of other factors, like commercialism, that may weigh against a finding of fair use.” Campbell, 510 U.S. at 579; accord Griner v. King, 104 F.4th 1, 9 (8th Cir. 2024); see Balganesh & Menell, supra, at 441 (“Campbell had been very clear that the commerciality of the putative fair use was to be weighed against its claim of transformativeness… Commerciality and transformativeness were thus to be seen on a sliding scale fulcrum.”).

Indeed, the Supreme Court has time and again stated that the “undisputed commercial character of [a] use, though not dispositive, ‘tends to weigh against a finding of fair use.’ ” Warhol, at 537 (quoting Harper & Row Publishers, 471 U.S. at 562). But, it would be legal error for a court to “giv[e] virtually dispositive weight to the commercial nature of the” the work. Campbell, 510 U.S. at 584. The Court in Campbell elaborated on the point:

[T]he mere fact that a use is educational and not for profit does not insulate it from a finding of infringement, any more than the commercial character of a use bars a finding of fairness. If, indeed, commerciality carried presumptive force against a finding of fairness, the presumption would swallow nearly all of the illustrative uses listed in the preamble paragraph of § 107, including news reporting, comment, criticism, teaching, scholarship, and research, since these activities “are generally conducted for profit in this country.” Congress could not have intended such a rule…

Id. (quoting Harper & Row, 471 U.S. at 592 (Brennan, J., dissenting)).

Importantly, the focus is on the commercial exploitation of the copyrighted work itself, not on the commercial nature of the secondary work as a whole. See Harper & Row Publishers, 471 U.S. at 562 (“The crux of the profit/nonprofit distinction is not whether the sole motive of the use is monetary gain but whether the user stands to profit from exploitation of the copyrighted material without paying the customary price.” (emphasis added)); Bouchat v. Balt. Ravens Ltd. P’ship, 737 F.3d 932, 942 (4th Cir. 2013) (“The key inquiry is the extent to which the [copyrighted work] itself—and not the videos as a whole—provides commercial gain.”).

To summarize, the first fair-use factor first considers whether the secondary use is transformative by virtue of its different purpose or character, and, if so, the degree to which it is transformative. See Warhol, 598 U.S. at 528, 532. If the secondary use is transformative in this broad sense, then no independent justification is likely to be necessary, and the use will be justified by furthering the goals of copyright. See Authors Guild, 804 F.3d at 214. On the other hand, if a secondary use does not have a sufficiently distinct purpose or character, then the use is likely to require an independent justification—that is, to require justification in a narrower sense. See Warhol, 598 U.S. at 532. Finally, the degree of transformativeness is then weighed against the commerciality of the secondary use. See id. “If an original work and a secondary use share the same or highly similar purposes, and the secondary use is of a commercial nature, the first factor is likely to weigh against fair use, absent some other justification for copying.” Id. at 532–33.

We now turn to discuss the category of secondary use at issue here—documentaries. Documentaries frequently incorporate snippets of copyrighted materials. Nevertheless, in cases involving such documentaries, courts frequently have concluded that the first factor weighed in favor of fair use.

This outcome does not stem from the fact that documentaries are categorically favored. They are not. There is no presumption in favor of fair use that flows from attaching the label “documentary” to a secondary work. Rather, insofar as the scales often have tilted in favor of fair use in the area of documentaries, it likely is a function of the fact that documentaries frequently reflect preamble purposes—by commenting on social ills, criticizing industrial developments, or educating viewers regarding notable personalities and world events.

Documentaries frequently use snippets of copyrighted works incidentally in furthering their own creative purposes. See Bouchat, 737 F.3d at 940, 949 (describing how the use of the logo for “less than ten seconds,” which was “take your pick—fleeting, incidental, de minimis, [or] innocuous,” supported the documentary’s new use); see also Elvis Presley Enters., Inc. v. Passport Video, 349 F.3d 622, 629 (9th Cir. 2003) (noting that the defendant’s “use of many of the television clips is transformative because they are cited as historical reference points in the life of a remarkable entertainer”); Brown v. Netflix, Inc., 855 F. App’x 61, 63 (2d Cir. 2021) (concluding that a documentary film “incidentally” used a song during “brief background accompaniment [in a scene depicting a] burlesque act”); see also Kelley v. Morning Bee, Inc., No. 1:21-CV-8420-GHW, 2023 WL 6276690, at *12 (S.D.N.Y. Sept. 26, 2023) (unpublished) (“If documentarians had to obtain licenses for every fleeting, incidental capture of a copyrighted work in the background of any given scene, the incentive to create biographical documentaries that accurately represent a subject’s life and movements would be severely curtailed.”). Such incidental or insubstantial use of copyrighted materials is not likely to run afoul of the evil of substituting or superseding copyrighted works.

[The court examined Bouchat v. Baltimore Ravens Ltd. Partnership (4th Cir.) and Elvis Presley Enterprises, Inc. v. Passport Video (9th Cir.) as illustrations: in Bouchat, fleeting use of a logo in history videos was transformative; in Elvis, a documentary’s mixed use of clips — some to illustrate commentary, some for their own entertainment value — made the first factor a close question.]

In sum, in cases involving documentaries, courts frequently have determined that the first factor weighs in favor of fair use. Those outcomes stem from certain characteristics discussed supra that are frequently associated with documentaries; absent such characteristics, factor one is unlikely to weigh in favor of fair use.

Turning to the case at hand, the district court found Defendants’ use to be transformative. In finding that the first factor weighed in Defendants’ favor, the district court stated that “the core of [the] inquiry is ‘whether the new work merely “supersede[s] the objects” of the original creation, or instead adds something new, with a further purpose or different character, altering the first with new expression, meaning, or message.’ ” (quoting Campbell, 510 U.S. at 579).

Plaintiffs contend that the district court applied the incorrect standard when assessing the first factor. More specifically, Plaintiffs assert that the district court “misconstrued the meaning of ‘transformative’ in ruling that Defendants’ use was a transformative use.” They argue that the district court “overlooked that a mere difference in purpose is not quite the same thing as transformation.” Plaintiffs claim that the first statutory factor counsels in their favor (i.e., against fair use) because Defendants’ “streaming use is as commercial as it gets and is not transformative because the use makes no commentary upon the work itself.”

We conclude, however, that Defendants’ use of sixty-six seconds of the Funeral Video fits comfortably within the mold of those documentary cases in which courts have found that the first factor weighs in favor of fair use.

We summarize our reasoning here. As an initial matter, Defendants used the Funeral Video excerpt as part and parcel of a work reflecting preamble purposes—to further a larger narrative that, among other things, commented on and educated viewers about Mr. Exotic and the “big cat world.” Additionally, the excerpt of the Funeral Video is transformative to a significant degree. The excerpt was used by Defendants to illustrate Mr. Exotic’s purported megalomania, highlight his showmanship, and, more generally, comment on specific factors influencing the world of big cat breeders. This is a distinctly different purpose from the purpose animating the Funeral Video—which was created to remember Mr. Maldonado.⁹ Further, Defendants’ use was insubstantial and cannot be said to risk superseding or substituting for the copyrighted work or its derivative uses.

Accordingly, we conclude that Defendants’ use of the copyrighted material finds strong justification in a broad sense through its alignment with and advancement of the purposes of copyright—that is, to promote the arts through education and commenting on notable personalities and societal concerns. As such, under these circumstances, Defendants were not obliged to rely on an independent justification in a narrower sense, like parody—that necessitated targeting (that is, directly commenting on the original)—to justify its use of an excerpt of the Funeral Video. Moreover, given that the transformative effect of Defendants’ use of the excerpt of the Funeral Video is significant, and given the insubstantial percentage of the Funeral Video incorporated in Episode 5 and in Tiger King, more generally, there is no indication that Defendants gained materially from the commercial exploitation of the copyrighted material itself. Accordingly, the commerciality factor does not materially tilt the balance away from a finding in favor of fair use.

At the threshold, our analysis of the first factor is guided by Tiger King’s very limited use of the Funeral Video in a manner animated by one or more preamble purposes—a mode of use frequently found in documentaries. Specifically, Tiger King’s use of the Funeral Video clips is classic documentary-style borrowing. Its use reflects the preamble purposes associated with many documentaries through its commentary on Mr. Exotic’s purported megalomania and on the “big cat world.” In particular, Episode Five raises questions about Mr. Exotic’s behavior at the funeral of his husband, Travis Maldonado, and includes an interview of Mr. Maldonado’s mother who expresses skepticism regarding Mr. Exotic’s behavior. At times Ms. Maldonado’s comments are played directly over visuals of Mr. Exotic’s remarks, with her stating, “He has to do dramatics, you know, drama,” and “He was even acting there.”

To be clear, however, our fair use determination does not turn on classifying Tiger King as a documentary or on shoehorning Defendants’ use of the Funeral Video excerpt into any of the enumerated preamble categories; we do not give such classifications and categories talismanic effect. We must assess “ ‘whether and to what extent’ the use at issue has a purpose or character different from the original”—viz., we need to determine whether Defendants’ use was transformative and to what degree. Warhol, 598 U.S. at 529 (quoting Campbell, 510 U.S. at 579).

Defendants’ use of the excerpted material from the copyrighted Funeral Video has a “purpose or character different from the original [work].” Warhol, 598 U.S. at 529. Unlike Mr. Sepi’s original work, Defendants do not use the excerpt of the Funeral Video as a “remembrance” of Mr. Maldonado. As noted supra, to the contrary, Defendants’ use seeks to illustrate Mr. Exotic’s purported megalomania, even in the face of tragedy, and to provide contextual fodder for commenting on Mr. Exotic’s showmanship and, more generally, the milieu of big-cat breeders. In this regard, Defendants juxtaposed clips of Mr. Exotic giving a eulogy with clips of the deceased’s mother criticizing Mr. Exotic. The difference between the purposes animating Defendants’ use of the excerpted material and Mr. Sepi’s use of the Funeral Video is significant. That is, the difference is significant in degree. More specifically, we conclude that Defendants’ use of the Funeral Video is so transformative that, as explained below, the first factor weighs in favor of fair use even after weighing the degree of transformativeness against commerciality and even without an independent (narrower) justification for copying.

In Campbell, the Supreme Court described a transformative use as one that “adds something new, with a further purpose or different character, altering the first [(i.e., the original copyrighted work)] with new expression, meaning, or message.” 510 U.S. at 579. However, in Warhol, the Court clarified that “Campbell cannot be read to mean that § 107(1) weighs in favor of any use that adds some new expression, meaning, or message.” 598 U.S. at 541 (emphasis added); see Balganesh & Menell, supra, at 436 (“Much of the majority opinion [in Warhol] rectified the misunderstanding and oversimplification of Campbell that many lower courts—and the plaintiff in Warhol—sought to rely on. Justice Sotomayor could not have been clearer on this: Her opinion reiterated the need to recognize Campbell’s ‘nuance’ and complexity, and unambiguously jettisoned prior readings.”).

Although new meaning may be relevant to the inquiry into the objective purpose of the secondary use, they are distinct concepts, and the latter—i.e., the objective purpose—is the focus of the transformativeness inquiry. Warhol, 598 U.S. at 542 (“New meaning or message was not sufficient. If it had been, the Court could have made quick work of the first fair use factor. Instead, meaning or message was simply relevant to whether the new use served a purpose distinct from the original, or instead superseded its objects.”). Here, we agree with the district court that Defendants “altered [the Funeral Video’s] message.” But they also did more: as Warhol clarified was necessary after the district court ruled here, they used the excerpt of the Funeral Video for an objectively different purpose and to a significant degree.

In this regard, it is important that Defendants copied the Funeral Video only to a limited extent and “only insofar as needed” to effectuate their different documentary-like purpose, using it, for example, to display Mr. Exotic’s purported megalomania and showmanship, even in the tragic circumstances of a funeral, and to set the stage for the negative reaction of Mr. Maldonado’s mother to that behavior. Such a limited use belies the notion that Defendants’ use risked superseding or supplanting Plaintiffs’ original use for the Funeral Video. See Warhol, 598 U.S. at 528 (indicating that the fundamental inquiry of the first factor is “whether the new work merely ‘supersede[s] the objects’ of the original creation. (‘supplanting’ the original), or instead adds something new, with a further purpose or different character” (alteration in original) (omission in original)); Romanova, 138 F.4th at 110–11 (noting that the first inquiry focuses on the question of whether the secondary use serves to supersede or supplant the original use and noting that “transformative uses are favored over those that risk to serve as substitutes for the original”); see also Copyright & Media Law Professors’ Supplemental Amicus Brief (noting that “borrowing can be justified as transformative [when] it deployed the borrowed material as necessary to achieve a different purpose”). The snippet of the Funeral Video that Defendants used only lasts approximately one minute and six seconds of a Funeral Video of almost twenty-four minutes long.

As in documentary and analogous settings, the use of such an insubstantial amount of the copyrighted work helps tip the first factor in favor of fair use. See SOFA Entertainment, Inc. v. Dodger Productions, Inc., 709 F.3d 1273, 1276, 1278 (9th Cir. 2013) (holding in “a copyright infringement suit over a seven-second clip of Ed Sullivan’s introduction of the Four Seasons on The Ed Sullivan Show,” which was used by Broadway producers “in their musical about the Four Seasons, Jersey Boys, to mark a historical point in the band’s career” that the plaintiff’s “argument that the clip was used for its own entertainment value is not supported by the record” (emphasis added)); Elvis, 349 F.3d at 629 (contrasting the two ways in which the defendant used snippets, where the “use of many of the television clips is transformative because they are cited as historical reference points in the life of a remarkable entertainer,” whereas “many of the film clips seem to be used in excess of this benign purpose, and instead are simply rebroadcast for entertainment purposes that plaintiffs rightfully own”); see also Bouchat, 737 F.3d at 947 (“The [copyrighted work]’s comparative insignificance as an element of the three displays thus confirms their transformative quality, and militates in favor of a finding of fair use.”); Kelley, 2023 WL 6276690, at *13 (“The use of Plaintiff’s photographs in the Film—ranging from seven to fourteen seconds per photograph, out of a 140-minute documentary—was so trivial that this factor decisively tips in favor of Defendants.”).

Because Defendants’ use of the Funeral Video is strongly justified by its objectively different purpose to a significant degree, and that use was insubstantial, we conclude that Defendants’ use was significantly transformative.

Plaintiffs make much of the fact that Defendants did not comment on—or, to use Warhol’s language regarding such action, “target,” 598 U.S. at 530—Mr. Sepi’s work. Indeed, Tiger King does not speak about Mr. Sepi’s video at all, neither the video’s ostensibly creative decisions nor its intended meaning. But, contrary to Plaintiffs’ reading of Warhol, Defendants did not need to comment on or target the Funeral Video for the first factor to militate in favor of fair use. Such a view reflects a misreading of governing precedent, and we reject it.

Although the Supreme Court recognized in Warhol that targeting can be important, the Court crucially stated that “targeting is not always required.” 598 U.S. at 547 n.21. This observation is firmly rooted in the Supreme Court’s prior pronouncements and also the decisions of other courts. See Google, 593 U.S. at 31 (holding that there was fair use of a copyrightable software program without targeting because “shared interfaces are necessary for different programs to speak to each other” and because “reimplementation of interfaces is necessary if programmers are to be able to use their acquired skills”).

Targeting may be one means of effectuating an “independent justification” in a narrower sense for copying the original work—such as parody, literary commentary, or criticism. Warhol, 598 U.S. at 532 (“In a narrower sense, a use may be justified because copying is reasonably necessary to achieve the user’s new purpose. Parody, for example, ‘needs to mimic an original to make its point.’ Similarly, other commentary or criticism that targets an original work may have compelling reason to “ ‘conjure up’ ” the original by borrowing from it.” (quoting Campbell, 510 U.S. at 580–81, 588)); see also id. at 547 n.21 (“The dissent wonders: Why does targeting matter?… The reason, as this opinion explains, is the first factor’s attention to justification.”). Such an “independent justification” may be “particularly relevant… where an original work and copying use share the same or highly similar purposes.” Id. at 532.

As the Warhol Court characterized it, such was the situation, at least in part, in Campbell. See id. at 530–32. “The use at issue in Campbell was 2 Live Crew’s copying of certain lyrics and musical elements from Roy Orbison’s song, ‘Oh, Pretty Woman,’ to create a rap derivative titled ‘Pretty Woman.’ ” Id. at 530. The Warhol Court acknowledged 2 Live Crew had transformed the original song “by adding new lyrics and musical elements, such that ‘Pretty Woman’ had a new message and different aesthetic.” Id. “Indeed,” the Court observed, “the whole genre of music changed from rock ballad to rap.” Id. But, critically, the Court concluded “[t]hat was not enough for the first factor to weigh in favor of fair use.” Id.

That outcome seems understandable to us in light of the analytical framework of Warhol because—irrespective of the differences that 2 Live Crew engrafted on “Oh, Pretty Woman”—the group’s “rap derivative” still “shared same or highly similar purposes” to Orbison’s original song—that is, to musically entertain listeners. Id. at 530, 532; see Balganesh & Menell, supra, at 439 (“The appropriate unit of analysis for fair use is the defendant’s ‘use’ rather than just copying… The rationale underlying the distinct purpose requirement—which the Warhol Court drew from Campbell—was the obvious substitutionary effect of a use that exhibited a purpose similar to that of the copyright owner’s.”)

However, the Court ultimately concluded that 2 Live Crew’s use militated in favor of a fair use determination because, in a narrower sense, that “use may be justified because copying is reasonably necessary to achieve the user’s new purpose”—that is, parody. Warhol, 598 U.S. at 532. In other words, parody provided an “independent justification” under circumstances “where an original work and copying use share the same or highly similar purposes,” and parody, by its nature, “targets an author or work for humor or ridicule.”¹⁰ Id. at 530, 532; see also Romanova, 138 F.4th at 112 (“[T]he Supreme Court’s ruling in Warhol made clear that Campbell’s requirement of justification is not applicable only in cases of claimed parody, but applies generally to all claims of fair use.”).

However, under the circumstances here—as we have demonstrated—the secondary use of the excerpt of the Funeral Video in Tiger King and the use of the original Funeral Video do not involve the same or similar purpose. And, consequently, in our view, an “independent justification”—like parody, that relies on targeting is not “particularly relevant to assessing fair use.” Warhol, 598 U.S. at 532. Rather, without regard to targeting at all, Defendants’ use of the copyrighted material in Tiger King was significantly transformative. It therefore finds strong justification—like the use of analogous snippets in many other documentaries—in Warhol’s “broader sense,” that is, through its alignment with and advancement of the purposes of copyright, to promote the arts through education and by commenting on notable personalities and societal concerns. See Romanova, 138 F.4th at 119 (noting that “justification is often found when the copying serves to critique, or otherwise comment on, the original, or its author, but can also be found in other circumstances, such as when the copying provides useful information about the original, or on other subjects” (emphasis added)); Griner, 104 F.4th at 9 (“Transformativeness ‘relates to the justification for the use.’ ” (quoting Warhol, 598 U.S. at 531)).

Stated otherwise, under these circumstances, Defendants were not obliged to rely on an independent justification in a narrower sense, like parody—the effectuation of which was reasonably dependent on targeting—to justify their use of the excerpt of the Funeral Video.

Having concluded that Defendants’ use of the excerpt of the Funeral Video was significantly transformative and justified in the broad sense, we next address the commerciality of the use. “The commercial nature of the use is not dispositive.” Warhol, 598 U.S. at 531. Indeed, the commercial character of a secondary use carries no “presumptive force against a finding of fairness”; if it did, “the presumption would swallow nearly all of the illustrative uses listed in the preamble paragraph of § 107.” Campbell, 510 U.S. at 584. The commerciality of a secondary use nevertheless “tends to weigh against a finding of fair use.” Harper & Row Publishers, 471 U.S. at 562.

We must balance the commerciality of Defendants’ use against the transformative effect of the use. See Warhol, 598 U.S. at 532–33. More specifically, as Warhol put it, “the first fair use factor considers whether the use of a copyrighted work has a further purpose or different character, which is a matter of degree, and the degree of difference must be balanced against the commercial nature of the use.” Id. at 532. “[T]he more transformative the new work, the less will be the significance of other factors, like commercialism…” Campbell, 510 U.S. at 579; see Balganesh & Menell, supra, at 441 (“Campbell had been very clear that the commerciality of the putative fair use was to be weighed against its claim of transformativeness. Commerciality and transformativeness were thus to be seen on a sliding scale fulcrum.”).

We have concluded that Defendants’ use was significantly transformative, causing the balance of the first factor to tip toward Defendants. And, as we see it, the commercialism of Defendants’ use here does not materially alter that balance in favor of fair use. That is, the significance of the commerciality factor does not “loom” as large in this context. Campbell, 510 U.S. at 580.

To be sure, it is undisputed that Defendants profited from their streaming of the Tiger King series because viewers must pay to access Netflix’s content. Netflix released the Tiger King documentary miniseries, and it was reportedly watched by over 34 million viewers in the U.S. during the first 10 days. Appellants contend that, “Publicly performing a work over a for-profit, pay-walled streaming platform to millions of customers is about as commercial as it gets.” However, the commerciality of Tiger King per se is not the proper focus of the inquiry. Recall that our attention should be on the commercial exploitation of the copyrighted work itself, not on the commercial nature of the secondary work as a whole. See Harper & Row Publishers, 471 U.S. at 562 (“The crux of the profit/nonprofit distinction is not whether the sole motive of the use is monetary gain but whether the user stands to profit from exploitation of the copyrighted material without paying the customary price.”); Bouchat, 737 F.3d at 942 (“The key inquiry is the extent to which the [copyrighted work] itself—and not the videos as a whole—provides commercial gain.”).

In that regard, it is important that Defendants’ use of the Funeral Video is insubstantial—either as compared to Episode Five or the entire season of Tiger King. The snippet comprises a mere 2.58% of Episode Five and less than one percent of the Tiger King series. This insubstantial use discourages us from placing “significant weight” on the commerciality factor. Bouchat, 737 F.3d at 942 (“The limited nature of the uses counsels against placing significant weight on their commercial nature.”); see Elvis, 349 F.3d at 627 (“The degree to which the new user exploits the copyright for commercial gain—as opposed to incidental use as part of a commercial enterprise—affects the weight we afford commercial nature as a factor.”); see also Karen Shatzkin & Dale Cohen, Picture This: Applying the Fair Use Doctrine to Documentary Films After Google/Oracle and Warhol, 30 UCLA ENT. L. REV. 21-22 (2023) (“Most particular archival uses in documentaries are largely insignificant to the commercial purposes of the filmmakers. Each piece of archive in itself generally constitutes only a small element of the film that is combined with other sources.”).

We simply cannot conclude here that the commercial success of Tiger King stemmed in any considerable degree from Defendants’ exploitation of the excerpt of the Funeral Video. See Bill Graham Archives, 448 F.3d at 612 (recognizing that the secondary work was “a commercial venture” but nonetheless finding the first factor weighed in favor of fair use by determining that the secondary work “does not exploit [the copyrighted original] as such for commercial gain” because, for example, the secondary work did not use the copyrighted images “in its commercial advertising or in any other way to promote the sale of the” work). Thus, on balance, we conclude that the commerciality of Defendants’ use does not tip the balance away from a finding that the first factor supports the fair-use defense.

We hold that Defendants’ use of an excerpt of the Funeral Video fits comfortably within the mold of the use of snippets of archival material in documentaries. Such uses frequently reflect preamble purposes and have been held by courts to support a finding of fair use at the first factor. And that is true here. Defendants’ documentary-style use of the excerpt of the Funeral Video is transformative to a significant degree and justified in a broad sense by its advancement of the purposes of copyright. And the commerciality factor here does not “loom” large. Campbell, 510 U.S. at 580. In sum, we hold that the first factor tilts in Defendants’ favor.

[The court held that the second fair-use factor (nature of the copyrighted work) favored the defendants. First, it found that the Funeral Video was factual rather than creative: Mr. Sepi simply set up a tripod and let it run, exercising no meaningful creative choices in filming or editing, and Joe Exotic’s charismatic presence at the event did not convert the footage into fiction. Second, the court rejected the argument that the video was “unpublished” for fair-use purposes. It explained that the second factor’s publication inquiry isn’t governed by the Copyright Act’s technical definition of “publication,” but by whether the author already exercised control over the work’s first public appearance. Because Sepi voluntarily livestreamed and posted the video on YouTube before the defendants used a clip of it, he had already made his choice about first public disclosure, so the defendants’ later use did not infringe that right. The court also dismissed the argument that the video’s personal, funeral-related subject matter should weigh against fair use, noting Sepi’s own choice to broadcast it publicly undercuts any claim of private or confidential character.]

We next turn our attention to the third statutory factor. The third factor concerns the amount and substantiality of the material used and is reviewed “with reference to the copyrighted work, not the infringing work.” Bill Graham Archives, 448 F.3d at 613; see 17 U.S.C. § 107(3) (noting that the third factor concerns “the amount and substantiality of the portion used in relation to the copyrighted work as a whole”). This factor requires courts to consider not only “the quantity of the materials used,” but also “their quality and importance.” Campbell, 510 U.S. at 587. So long as “the secondary user only copies as much as is necessary for his or her intended use, then this factor will not weigh against him or her.” Kelly v. Arriba Soft Corp., 336 F.3d 811, 820–21 (9th Cir. 2003).

Plaintiffs argue that the district court erred in assessing this factor, as it “failed to appreciate that quantity is not dispositive” of the inquiry. Instead, Plaintiffs contend that a “proper analysis of this factor demands a qualitative analysis.” Plaintiffs claim that “the qualitative value of the works copied in this case is quite high.” Specifically, they assert that “the clip here was taken precisely because it was unusual—i.e., was notable, compelling, captivating footage.” We are unconvinced.

As a threshold matter, Defendants used a quantitatively insubstantial amount of the Funeral Video—a total of approximately sixty-six seconds out of a video lasting nearly twenty-four minutes. Plaintiffs are correct: this consideration is not dispositive. But courts have generally found the use of such an insubstantial amount of a copyrighted work, as here, weighs in favor of fair use. Defendants’ use of such an insubstantial amount of the Funeral Video counsels in favor of a finding of fair use.

Furthermore, contrary to Plaintiffs’ assertion, the district court did assess the qualitative value of the clips used from the Funeral Video. Specifically, the district court noted:

But even if we were inclined to overlook this significant deficiency in Plaintiffs’ argument and assume that Defendants used the most qualitatively important scenes from the Funeral Video, Plaintiffs’ claim would still lack merit. Defendants appear to have used no more of the Funeral Video than necessary for their transformative purpose. More specifically, what Defendants used was reasonably necessary for the purpose of commenting on Mr. Exotic’s megalomania and showmanship and the milieu of big-cat breeders. See Kelly, 336 F.3d at 820–21; see also Threshold Media Corp. v. Relativity Media, LLC, No. CV 10-09318, 2013 WL 12331550, at *12 (C.D. Cal. Mar. 19, 2013) (unpublished) (“Although one might quibble whether the filmmakers could have cut a second or two from their uses of [plaintiff’s] song in order to further reduce its overall exposure, the overall amount used was reasonable in light of their purpose.”). Stated another way, for Defendants to make their point about Mr. Exotic’s character and traits and his big-cat environment, they reasonably used clips that focused on his unusual behavior at Travis Maldonado’s funeral. As such, Defendants copied only as much as was necessary for their intended transformative use.

In our view, based on the foregoing, the third statutory factor also weighs in favor of fair use.

We turn to the fourth factor, “the effect of the use upon the potential market for or value of the copyrighted work.” 17 U.S.C. § 107(4). In finding that the fourth factor weighed in Defendants’ favor, the district court concluded that “Tiger King is not a substitute for the Funeral Ceremony video.” Specifically, the district court reasoned that it was “not likely that a person interested in viewing the funeral would consider viewing Tiger King as a replacement.” Plaintiffs argue that the district court failed to consider harm to markets for derivative uses of the Funeral Video and that the district court failed to place the burden of proof on Defendants.

Plaintiffs do not challenge the district court’s conclusion that Defendants’ use is not a market substitute for the original Funeral Video. Instead, they only argue that the district court failed to consider the possibility of harm to derivative markets. As to the issue of derivative markets, Plaintiffs argue that “any lack of evidence about market harms cuts against Defendants’ fair use and means Defendants, as the movants on an affirmative defense, have failed to carry their burden on the fourth factor.” Plaintiffs note that “the Supreme Court and other Circuits have unequivocally placed the burden of proof on the proponent of the affirmative defense of fair use.”

Defendants respond that the “fourth factor weighs in the defendant’s favor when the plaintiff provides no evidence demonstrating a market impact.” As such, Defendants argue that “in attacking the district court’s order, Plaintiffs merely assert—without a shred of evidence—that Tiger King is an unfair ‘derivative use’ of Plaintiffs’ work.”

“The fourth fair use factor is ‘the effect of the use upon the potential market for or value of the copyrighted work.’ ” Campbell, 510 U.S. at 590 (quoting 17 U.S.C. § 107(4)). Furthermore, “[t]he enquiry ‘must take account not only of harm to the original but also of harm to the market for derivative works.’ ” Id. (quoting Harper & Row Publishers, 471 U.S. at 568). “[T]he possibility, or even the probability or certainty, of some loss of sales does not suffice to make the copy an effectively competing substitute that would tilt the weighty fourth factor in favor of the rights holder in the original.” Authors Guild, 804 F.3d at 224. “There must be a meaningful or significant effect ‘upon the potential market for or value of the copyrighted work.’ ” Id.; see also Campbell, 510 U.S. at 593 (“Evidence of substantial harm to [a derivative market] would weigh against a finding of fair use”).

“Courts have, on the whole, been more cautious when considering a plaintiff’s claim of harm in a derivative market—that is, a market not for the plaintiff’s work itself, but for derivative works based on the plaintiff’s work.” Restatement Of The Law, Copyright § 6.12 cmt. q. In particular, courts must be cautious of the “ ‘danger of circularity posed’ by considering unrealized licensing opportunities because ‘it is a given in every fair use case that plaintiff suffers a loss of a potential market if that potential is defined as the theoretical market for licensing the very use at bar[.]’ ” Google, 593 U.S. at 38 (quoting the Nimmer treatise). Courts must therefore focus on cognizable harms—as relevant here, harms to markets that fall within the statutory definition of derivative works. See Restatement Of The Law, Copyright § 6.12 cmt. q.

The statute defines a “derivative work” as a “work based upon one or more preexisting works, such as a translation, musical arrangement, dramatization, fictionalization, motion picture version, sound recording, art reproduction, abridgment, condensation, or any other form in which a work may be recast, transformed, or adapted.” 17 U.S.C. § 101. This definition, especially its illustrative examples, show that a derivative is a work that “re-present[s] the protected aspects of the original work, i.e., its expressive content, converted into an altered form[.]” Authors Guild, 804 F.3d at 225. Although derivative works may involve a substantial change in form, importantly, they “are likely to share the original work’s purpose and character.” Restatement Of The Law, Copyright § 6.12 cmt. q. “The market for potential derivative uses includes only those that creators of original works would in general develop or license others to develop.” Campbell, 510 U.S. at 592. Therefore, “copyright owners may not preempt exploitation of transformative markets” Castle Rock Ent., Inc. v. Carol Pub. Grp., Inc., 150 F.3d 132, 145 n.11 (2d Cir. 1998).

The first fair-use factor, and transformativeness in particular, informs the question of market impact. “A secondary use that is more different in purpose and character is less likely to usurp demand for the original work or its derivatives.” Warhol, 598 U.S. at 536 n.12; see Campbell, 510 U.S. at 591 (noting that when the defendant’s “use is transformative, market substitution is at least less certain, and market harm may not be so readily inferred”). But “the relationship is not absolute.” Warhol, 598 U.S. at 536 n.12. “While the first factor considers whether and to what extent an original work and secondary use have substitutable purposes, the fourth factor focuses on actual or potential market substitution.” Id. For example, “even if the purpose of the copying is for a valuably transformative purpose, such copying might nonetheless harm the value of the copyrighted original if done in a manner that results in widespread revelation of sufficiently significant portions of the original as to make available a significantly competing substitute.” Authors Guild, 804 F.3d at 223. Likewise, a transformative use may be similar enough to a protectible derivative market to cause market harm. See Campbell, 510 U.S. at 593 (“But the [transformative work] may have a more complex character, with effects not only in the [unprotected, transformative market] but also in protectible markets for derivative works, too.”); see also supra note 15.

Fair use is an affirmative defense, thus requiring the defendant to bring forward favorable evidence about relevant markets. Nevertheless, a defendant need not prove a lack of harm to derivative markets if the plaintiff has not identified any such markets. See Leibovitz v. Paramount Pictures Corp., 137 F.3d 109, 116 n.6 (2d Cir. 1998) (noting that where the copyright holder does “not identif[y] any market for a derivative work that might be harmed… the defendant has no obligation to present evidence showing lack of harm in a market for derivative works”); Hachette Book Grp., Inc. v. Internet Archive, 115 F.4th 163, 194 (2d Cir. 2024) (“The rightsholder may bear some initial burden of identifying relevant markets[.]”); see also Andy Warhol Found. for Visual Arts, Inc. v. Goldsmith, 11 F.4th 26, 48 (2d Cir. 2021) (“Since Goldsmith has identified a relevant market, AWF’s failure to put forth any evidence [negating market harm] tilts the scales toward Goldsmith.”).

Plaintiffs have not identified, below or on appeal, any protectible derivative market that may be harmed by Defendants’ use. Plaintiffs merely speculate and offer conclusory statements to the effect that there must have been some derivative markets, while remaining vague about what they are: “Given that Joe Exotic is content gold and a documentarian’s dream, it’s hard to imagine that there was not a market to make derivative uses” of the Funeral Video. Notwithstanding that Defendants have the evidentiary burden to show the impact on derivative markets, they have no burden to disprove effects on hypothetical derivative markets that Plaintiffs have not identified. Combined with the district court’s (unchallenged) conclusion that Tiger King is not a substitute for the original Funeral Video, Plaintiffs’ failure to identify protectible derivative markets that may be harmed is likely enough to preclude a showing of market harm and, therefore, likely enough for us to conclude that the fourth factor weighs in favor of fair use. But there is more.

Defendants’ copying of the Funeral Video is significantly transformative and, consequently, attenuates the likelihood of any cognizable market harm. Defendants clipped just sixty-six seconds from the Funeral Video, chopped it up, and interspersed it with footage of Mr. Maldonado’s mother commenting on Mr. Exotic. At times her comments are played directly over visuals of Mr. Exotic’s remarks, with her stating, “He has to do dramatics, you know, drama,” and “He was even acting there.” Those changes, along with the broader context of the episode and the series as a whole, make abundantly clear that Defendants’ use had a totally different purpose from the original Funeral Video. The Funeral Video is a remembrance, but Defendants used the specific excerpt to advance their documentary-style commentary. Whereas the Funeral Video is focused on capturing Mr. Maldonado’s funeral, Defendants use the clip of the Funeral Video to tell a story about Mr. Exotic, probing the appropriateness of his theatrics at his husband’s funeral as part of Tiger King’s broader exploration of his megalomania. As we have said, Defendants’ use is significantly transformative.

This transformative use undermines the likelihood of market harm. As Warhol and Campbell articulate, the more transformative the defendant’s use, the less likely it is to substitute for the original or derivatives. See Warhol, 598 U.S. at 536 n.12; Campbell, 510 U.S. at 591. That relationship is apparent here. Based on Defendants’ limited copying from the Funeral Video and their significantly transformative use of the copied clips, it strains belief that anyone would watch Tiger King or the segment at issue as a substitute for the Funeral Video. Even if there were derivative markets at issue, Defendants’ significantly transformative use would attenuate the possibility of harm to those markets as well. See Warhol, 598 U.S. at 536 n.12 (“A secondary use that is more different in purpose and character is less likely to usurp demand for the original work or its derivatives[.]”). Anything qualifying as a derivative of the Funeral Video would be quite dissimilar to Defendants’ use, making substitution unlikely. Therefore, Defendants’ significantly transformative use militates significantly in favor of the conclusion that the fourth factor favors Defendants.

Furthermore, though not extensive or sophisticated, the evidence here of market impact—extrinsic to the uses of the original and secondary works themselves—bolsters that conclusion. There is virtually nothing suggesting that Defendants’ use harmed the market for the Funeral Video or any derivatives. Plaintiffs point to the fact that Defendants “licensed film clips from Exotic and Lowe including the works at issue in this lawsuit.” But inferring market harm from that payment would be both factually and legally problematic. As a factual matter, the payment may have been made in hopes of avoiding the need to litigate the complicated fair-use doctrine. See Campbell, 510 U.S. at 585 n.18 (noting that the defendant’s prior offer to pay a licensing fee “may simply have been made in a good-faith effort to avoid this litigation”); Bill Graham, 448 F.3d at 615 (“A publisher’s willingness to pay license fees for reproduction of images does not establish that the publisher may not, in the alternative, make fair use of those images.”).

Legally, we must not reflexively infer harm based on “the theoretical market for licensing the very use at bar.” Nimmer, § 13F.08[B] (2025). Under the circumstances here, that loss of potential licensing is only cognizable if the defendant’s use is a derivative work or substitutes for such works. See Campbell, 510 U.S. at 593; Restatement Of The Law, Copyright § 6.12 cmt. q. As we have explained, Defendants’ significantly transformative use falls far outside the bounds of a statutory derivative of the Funeral Video.

Moreover, other evidence tends to confirm a lack of licensing harm. Mr. Sepi admitted that he “has never licensed, sold, or otherwise commercially exploited any of his work (including the Videos)”. Indeed, Mr. Sepi’s deposition testimony indicates he never attempted to license the Funeral Video. When asked what he has done with the Funeral Video, Mr. Sepi made no mention of any commercial plans.

Asked whether he retained a copy after the funeral, Mr. Sepi stated that he did so “because Travis was a really, really good friend.”

The fact that Mr. Sepi has not licensed or attempted to license the Funeral Video is evidence cutting against derivative market harm. We think that these admissions from Mr. Sepi provide, under the circumstances here, a sufficient evidentiary basis for us to assess and weigh the fourth factor. And, when those admissions are considered in the context of Defendants’ significantly transformative use and limited copying of the original work, we think the fourth factor convincingly weighs in favor of Defendants.

To be sure, Plaintiffs hang their fourth-factor hat on the following language from Campbell: “Since fair use is an affirmative defense, its proponent would have difficulty carrying the burden of demonstrating fair use without favorable evidence about relevant markets.” 510 U.S. at 590. It is of course true that the proponent of fair use bears the evidentiary burden on market impact. But we do not read Campbell as a rigid requirement that the proponent of fair use must always produce evidence of market impact—extrinsic to the uses of the original and secondary works themselves—to prevail. For one thing, Campbell speaks of “difficulty” of shouldering the fair use burden, not the impossibility of doing so. 510 U.S. at 590. The Court goes on to explain that, where a defendant’s use is significantly transformative, there is no presumption of market harm. Id. at 591. We therefore agree with the Restatement that the above Campbell “statement may best be read as providing a prediction, i.e., that a defendant would be unlikely to prevail without favorable evidence on the fourth factor, rather than stating a legal requirement, i.e., that a defendant must always present favorable evidence on the fourth factor in order to prevail.” Restatement Of The Law, Copyright § 6.12 cmt. p.

We recognize that a few pages later the Campbell Court says that “it is impossible to deal with the fourth factor except by recognizing that a silent record on an important factor bearing on fair use disentitled the proponent of the defense, 2 Live Crew, to summary judgment.” 510 U.S. at 594. But the Court made that statement in the context of the particular derivative market at issue, namely nonparody rap versions of the original rock song, that plausibly could have been harmed by the defendant’s parody rap version. See id. at 593–94. Because Plaintiffs identify no protectible markets for derivative works, this discussion from Campbell is inapposite.

In summary, Plaintiffs do not challenge the district court’s conclusion that Defendants’ use is not a market substitute for the Funeral Video itself. And although Plaintiffs argue that the district court failed to hold Defendants to their evidentiary burden regarding derivative market harm, Plaintiffs have not identified any protectible derivative markets. Moreover, the available evidence tends to confirm that Defendants’ use has not harmed any such markets.

After consideration of each factor, “the results [are to be] weighed together, in light of the purposes of copyright.” Warhol, 598 U.S. at 551 (quoting Campbell, 510 U.S. at 578). Here, that weighing is straightforward because all four factors point with force in the same direction: fair use.