The true beast of the Pandemic has returned, and now it will devour it’s own genre. Behold, as the most popular documentary of this century destroys Fair Use:

Filmmakers are warning that a recent ruling in a copyright suit against Netflix over its “Tiger King” docuseries could restrict the use of video clips in documentaries, and upset a long-held understanding of what constitutes “fair use.”

The 10th Circuit Court of Appeals, based in Denver, ruled in March that the use of a 66-second excerpt from a funeral video was not “transformative” under the Copyright Act. The three-judge panel remanded the case to a lower court to determine if Netflix violated the copyright of Tim Sepi, the videographer who shot the scene.

-“‘Tiger King’ Ruling Could Limit ‘Fair Use’ of Video Clips in Documentaries“, Gene Maddaus, Variety.com

The rule of Fair Use requires that the use of a content be “transformative”, i.e., you’re using it to do something with it other than what the creator did with it. To use content in order to comment on it is fair use. To use content in order to comment on something else, is according to 10th Circuit Court of Appeals, not.

This is abstruse inside-baseball blippity-blip to most of the audience, but it’s deeply important to content-creators. Making movies and TV shows, even documentaries, is expensive. Any way you can find to cut costs, you can. This ruling will require content creators to pay more for the use of other people’s content.

That doesn’t mean I think it’s a bad, or unfair ruling. I think people should have the right to have their content paid for, and used with permission, rather than simply yoinked by Netflix and studios without a how-do-you-do. But raising costs is raising costs, and in the aggregate, this will make it harder for documentaries to get made.

Netflix has petitioned the court to reconsider its decision, and has been joined by the Motion Picture Association, the International Documentary Association, Film Independent, and a host of media law professors in raising alarms about the potential chilling effect on non-fiction storytelling.

–Ibid.

Or, you guys could set up an agreement, or licensing service, or something, to spread the costs of using people’s content around. Would that really cost you more, long-term, than the billable hours of taking this to the Supreme Court.

I know, it’s a high-risk industry. But it’s your industry. Figure it out, and stop treating everyone else’s content as your piggie bank, ya pirates.