
If you’re ever online when viral trends and or news is circulating the streets of the world wide web, then I’m willing to bet my last everything that you heard of, and maybe even watched, the Tiger King on Netflix.
For those of us who weren’t cool enough to jump on the Tiger King craze, we got various versions from friends and family.
What most of us however didn’t know, was that Netflix was sued for this documentary. Why? Whyte Monkee Productions claimed that a certain clip was used by Netflix without their consent.
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The case of Whyte Monkee Productions, LLC v. Netflix, brought back to the forefront a significant problem for filmmakers: the concept of fair use. The video streaming company Netflix was subjected to legal attention after it was discovered that it had used footage of Joe Exotic’s husband’s funeral in “Tiger King” without first obtaining permission from the original videographers. From the beginning, the court decided that Netflix’s utilization of the material did not satisfy the criteria for fair use. It however vacated this decision in May 2024.
Not only is this case significant for documentary filmmakers in Kenya, but it is also significant for filmmakers in other countries since it demonstrates what may and may not be done when exploiting the content of another person.
So, what exactly is meant by the term “fair use,” and how does it influence filmmakers?
Fair use is a legal notion that permits limited use of copyrighted material without the consent of the owner.
In general, the courts take into consideration the following four factors:
- First, the purpose of the use and the nature of the use: Is it a duplicate of the original work, or is it a transformation that alters the meaning of the original work? It is possible that you are in a more secure position if you are commenting, criticizing, or simply educating.
- The nature of the work that is protected by intellectual property rights: the use of content that is factual or non-fictional is more likely to be judged fair use than the use of content that is creative or fictional.
- How much of the original work is used, and how substantial is the amount of the work that is used? When the portion is smaller, there is a greater likelihood that it will be considered fair use.
- Regarding the impact on the market, does the utilization of the original work have a negative impact on its market value? The use of the content is less likely to be considered fair use if it is in direct competition with the original or if it causes damage to the original.
Before changing its mind, the court first determined that the purpose of the material was not sufficiently transformative on account of the fact that the corporation utilized it for a documentary, although the company did not add any meaningful commentary on the original work.
Something , therefore that Kenyan Filmmakers Ought to Be Aware Of:
- It is essential to have a solid understanding of fair use if you are in the process of producing a documentary, particularly one that has aspirations of reaching a global audience:
- It is important to obtain permits wherever possible. Although fair use does exist, relying on it without a sufficient rationale can put you in a position where you could face legal consequences.
- Be transformative: If you are using the footage or photographs of another person, you should either offer comments or criticism, or you should make sure that the use is designed for educational purposes. The simple act of showing the footage without making significant changes or providing commentary might not be sufficient.
- The market impact should be taken into consideration. If the value of the original material could be diminished as a result of your film, the courts may not stand with you.
The Take-Away? Fair usage is not a straightforward rule but rather a delicate balancing act. For filmmakers, especially those who are beginning their careers in documentary filmmaking, it is essential to negotiate this situation with caution. Before using copyrighted content without first obtaining formal permission, be aware of the limitations and carefully consider the risks involved. You will not only protect your project by doing so, but you will also show respect for the work that was created by other creators.