`
`PUBLISH
`
`UNITED STATES COURT OF APPEALS
`
`FOR THE TENTH CIRCUIT
`_________________________________
`WHYTE MONKEE PRODUCTIONS,
`LLC; TIMOTHY SEPI,
`
` Plaintiffs - Appellants,
`
`v.
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`NETFLIX, INC.; ROYAL GOODE
`PRODUCTIONS, LLC,
`
` Defendants – Appellees,
`
`------------------------------------
`
`JONATHAN ASKIN; MARK
`BARTHOLOMEW; BARTON BEEBE;
`MICHAEL A. CARRIER; MICHAEL W.
`CARROLL; ZACHARY CATANZARO;
`DALE COHEN; JORGE L.
`CONTRERAS; STACEY DOGAN;
`BRIAN L. FRYE; SHUBHA GHOSH;
`JAMES GIBSON; ELLEN P.
`GOODMAN; JAMES GRIMMELMANN;
`LAURA A. HEYMANN; PETER JASZI;
`STACEY M. LANTAGNE; LEE ANN
`WHEELIS LOCKRIDGE; MARK A.
`LEMLEY; YVETTE JOY LIEBESMAN;
`ORLY LOBEL; GLYNN LUNNEY;
`TIMOTHY J. MCFARLIN; MARK P.
`MCKENNA; VIVA MOFFAT; TYLER T.
`OCHOA; VICTORIA PHILLIPS; BETSY
`ROSENBLATT; ZAHR K. SAID;
`PAMELA SAMUELSON; JASON M.
`SCHULTZ; JESSICA SILBEY; ERIK
`STALLMAN; REBECCA TUSHNET;
`INTERNATIONAL DOCUMENTARY
`
`
`
`
`
`No. 22-6086
`FILED
`United States Court of Appeals
`Tenth Circuit
`
`April 30, 2026
`
`Christopher M. Wolpert
`Clerk of Court
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`2
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`ASSOCIATION; FILM INDEPENDENT;
`KARTEMQUIN EDUCATIONAL
`FILMS, INC.; WOMEN IN FILM; THE
`UNIVERSITY FILM AND VIDEO
`ASSOCIATION,
`
` Amici Curiae.
`_________________________________
`Appeal from the United States District Court
`for the Western District of Oklahoma
`(D.C. No. 5:20-CV-00933-D)
`_________________________________
`Gregory Keenan, Digital Justice Foundation, Floral Park, New York (Andrew Grimm of
`Digital Justice Foundation, Omaha, Nebraska, with him on the briefs), for Plaintiffs-
`Appellants.
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`Robert H. Rotstein, Mitchell, Silberberg & Knupp LLP, Los Angeles, California (Emily
`F. Evitt of Mitchell, Silberberg & Knupp LLP, Los Angeles, California; and Mack J.
`Morgan, III, of MJMLAW PLLC, Nichols Hills, Oklahoma, with him on the brief), for
`Defendants-Appellees.
`
`Philip R. Malone, Nina K. Srejovic, and Alex S. Cohen, Juelsgaard Intellectual Property
`and Innovation Clinic, Mills Legal Clinic at Stanford Law School, Stanford, CA, filed an
`Amici Curiae brief on behalf of 34 Copyright and Media Law Professors in support of
`Defendants-Appellees.
`
`Jack I. Lerner, UCI Intellectual Property, Arts, and Technology Clinic, University of
`California, Irvine School of Law, Irvine, CA, and Rom Bar-Nissim, Heah Bar-Nissim
`LLP, Los Angeles, CA, filed an Amici Curiae brief on behalf of International
`Documentary Association, Film Independent, Kartemquin Educational Films, Inc.,
`Women In Film, and The University Film and Video Association in support of
`Defendants-Appellees.
`_________________________________
`Before HOLMES, Chief Judge, HARTZ, and CARSON, Circuit Judges.
`_________________________________
`HOLMES, Chief Judge.
`_________________________________
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`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 permissio n.
`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.
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`On appeal, Plaintiffs argue that the district court erred in concluding that the
`first seven videos were works made for hire, as “Mr. Sepi’s line of work was tour
`photography and videography, but the works in question are not related to tours, are
`not videography but cinematography, were not made during working hours, and were
`made at his home as well as his workplace .” Aplts.’ Opening Br. at 16. Plaintiffs
`also argue that the district court erred on fair use, as “all four statutory factors”
`weighed again st such a finding. Id. In support of their position, Plaintiffs point to
`the Supreme Court’s decision in Andy Warhol Foundation for the Visual Arts, Inc. v.
`Goldsmith , 598 U.S. 508 (2023), which allegedly “supports reversal of the fair- use
`decision below. ” Aplts.’ Am. Suppl. Br. at 1 1.
`With respect to the first seven videos, we conclude that Plaintiffs have asserted
`a new theory on appeal —which was not raised in the district court —and have failed
`to argue for plain error. As such, we hold that Plaintiffs have waived th is argument
`for purposes of this appeal . And, consequently, we uphold the district court’s
`judgment as it pertains to the first seven videos.
`We also uphold the district court ’s conclusion that Defendants ’ use of the
`Funeral Video qualifies as fair use. We agree with the district court that all four
`statutory factors favor Defendants. We therefore uphold t he district court’s grant of
`summary judgment as to the Funeral Video.
`In sum, we affirm the district court’s judgment .
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`5
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`I
`A
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`Joseph Maldonado- Passage , also known as Joe Exotic (“Mr. Exotic”), 1
`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.
`In March 2015, Mr. Sepi discuss ed working for Joe Exotic TV with
`Mr. Kirkham and Mr. Exotic. From these discussions, Mr. Sepi understood that part
`of what he would be doing was working on Joe Exotic TV, that he would be paid
`$150 per week, and that he would be allowed to live on Park property for free. Only
`a week after starting his employment, however, a fire destroyed the studio and
`camera equipment. Mr. Kirkham quit, leaving Mr. Sepi as the sole videographer at
`the Park.
`With the studio and camera equipment destroyed, Joe Exotic TV went on
`hiatus. During this time, Mr. Sepi continued to photograph Park tours and assist with
`
`1 We refer to Mr. Exotic using his chosen name because both parties do
`so.
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`animal care around the Park. Within a couple of months, however, a new production
`studio had been built, new camera equipment had been obtained, and Joe Exotic TV
`resumed production.
`Mr. Sepi admits that during the day, while using the studio’s equipment, “he
`split time taking tour photographs, filming , and editing for Joe Exotic TV, and
`filming campaign videos for [Mr.] Exotic, [2] but denies that these were all part of his
`workday duties for the Park.” Aplts.’ App., Vol. IV, ¶ 17, at 19 (Pls.’ Resp. in Opp ’n
`to Defs.’ Mot. for Summ. J., filed Feb. 28, 2022). Instead, he alleges on appeal that
`he was solely employed to take photography and videography of park tours. As such,
`he claims that he “was making footage” for Joe Exotic TV “on his own time,”
`because “Joe Exotic was content gold ,” and the footage would allow him to achieve
`success in the media. Aplts.’ Opening Br. at 10.
`Joe Exotic TV returned to streaming on May 7, 2015. Each episode was
`preceded by a disclaimer stating that the footage was owned by Whyte Monkee
`Productions. Whyte Monkee Productions is an Oklahoma limited liability company
`that was established on May 5, 2015. The Articles of Organization include
`Mr. Exotic’s email address, the Park’s street address, and “Tim Sepi” as the
`signatory. Although Mr. Sepi’s degree of control over Whyte Monkee Productions
`was contested below, he now concedes that “[f]or the purposes of this appeal, the
`
`2 While Mr. Sepi was working with him, Mr. Exotic undertook a
`campaign for President of the United States.
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`Court should assume that Mr. Sepi was unaware of [Whyte Monkee Productions] at
`the time of formation .” Id. at 63.
`2
`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 . The seven -episode series runs
`approximately 312 minutes. The series included clips from the following seven
`videos that were filmed by Mr. Sepi while he was an employee of the Park:
`1. Disrespectful Tomato Thrower Trouble
`2. Joe – Getting Dragged by Lion
`3. Joe – Presidential PSA
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`4. Mobile Trailer Inspections for Volunteers
`5. Country Music Artist Joe Exotic – Bring It On
`6. Joe Exotic Country Music “Here Kitty Kitty”
`7. Joe Exotic TV – Tornado on the Ground
` These videos were all filmed by Mr. Sepi between May 2015 and August 2016.
`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 th e 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
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`acting there.” Aplts.’ App., Vol. IX, Multimedia Ex. 5, at 27:07– 27:18. 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.
`3
`In a separate lawsuit, Carole Baskin— a big-cat enthusiast and Mr. Exotic’s
`longstanding rival —obtained a $1 million judgment against Mr. Exotic. To collect
`this judgment, Ms. Baskin initiated garnishment proceedings against Mr. Exotic in
`Oklahoma. On September 13, 2016, approximately one month af ter leaving the Park,
`Mr. Sepi gave a deposition as a fact witness in connection with the garnishment
`proceedings. During the course of his 2016 deposition, Mr. Sepi testified (1) that he
`had been hired by and worked for the Park as a videographer and photographer, and
`(2) that he had no involvement in the creation of the entity known as Whyte Monkee
`Productions, nor any knowledge of that entity’s activities.
`However, Mr. Sepi’s testimony on these points changed significantly by the
`time he filed this lawsuit. In 2021, he gave a deposition in connection with this
`litigation in which he directly contradicted his earlier testimony and admitted to
`committing perjury during his 2016 deposition. Specifically, at his 2021 deposition,
`Mr. Sepi testified that he came up with the idea to form Whyte Monkee Productions
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`after the studio fire and gained permission from the Park to film videos using th e
`entity. Mr. Sepi also testified that he was being paid $150 per week for his
`photography work at the Park, which did not include any videography. Specifically,
`he testified that when he described himself as a “cameraperson ” in his 2016
`deposition, he did not properly elaborate to indicate that he only meant photography.
`See Aplts.’ App., Vol. V, at 44, Tr. 30 :6–19 (Dep. of Timothy Sepi, dated May 13,
`2021).
`B
`On September 14, 2020, Plaintiffs sued Netflix —and later 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. They sought
`a permanent injunction against Defendants’ alleged infringement, an award of
`monetary damages, litigation costs, and other legal and equitable relief as
`appropriate. On January 27, 2022, Defendants moved for summary judgment on the
`grounds that (1) Mr. Sepi had shot seven of the Videos with in the scope of his
`employment such that those videos were works made for hire; and (2) the remaining
`video—i.e., the Funeral Video —is not subject to copyright protection at all because it
`is lacking in originality. Alternatively, Defendants argued that their use of the eighth
`video qualified as a fair use such that no copyright infringement had occurred.
`On April 27, 2022, the district court granted Defendants’ motion for summary
`judgment, holding 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 those videos.
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`In reaching that conclusion, the district court also determined that Mr. Sepi’s 2021
`testimony should be “excluded as a transparent attempt to create a sham issue of
`fact.” Aplts.’ App., Vol. VIII, at 264 (Order, filed Apr. 27, 2022).
`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.” Id. at 271. 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. The same day, the district court entered
`judgment in favor of Defendants. On May 26, 2022, Plaintiffs filed a timely notice
`of appeal from the district court’s order granting summary judgment.
`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.
`We directed the parties to file supplemental briefs on three limited questions
`pertaining to the relevance of “predominant principles of fair use jurisprudence that
`relate to documentary use for ‘preamble’ purposes (17 U.S.C. § 107) of film clips ”
`and the impact of Warhol on our analysis . Whyte Monkee Prods ., LLC v. Netflix,
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`Inc., 101 F.4th 787 , 787 (10th Cir. 2024). The parties, and several amici curiae—
`including the International Documentary Association, Film Independent, Kartemquin
`Educational Films , Inc. , Women in Film, the University Film and Video Association ,
`and a group of copyright and media law professors —filed supplemental briefs on
`these questions, and we heard a second round of oral arguments, this time focused on
`our three questions. We now address the parties’ arguments anew, with the benefit of
`their additional exposition on these questions and with the helpful briefing of the
`amici, to whom we express our gratitude.
`II
` Plaintiffs raise two issues on appeal. First, they argue that the seven videos
`Mr. Sepi filmed while employed at the Park were not works made for hire.
`Specifically, Plaintiffs contend —for the first time on appeal —that “Mr. Sepi’s scope
`of employment as a tour videographer did not extend to cinematography and film
`editing conducted on his own time outside of tours .” Aplts.’ Opening Br. at 66.
`Second, Plaintiffs argue that the district court erred in its fair-use analysis of
`Defendants’ use of the Funeral Video . In particular, Plaintiffs contend that “[u]nder
`the statutory fair- use factors, the [Defendants’] streaming use . . . is unfair and
`contrary to the purposes of copyright .” Id. at 23. 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. ” Aplts.’ Am. Suppl. Br. at 11.
` With respect to the first seven videos, we conclude that Plaintiffs have asserted
`a new theory on appeal —which was not raised in the district court —and have failed
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`to argue for plain error. As such, we hold that Plaintiffs have waived th is theory .
`And, because this theory constitutes their sole ground for challenging the district
`court’s entry of judgment against them regarding the first seven videos, we uphold
`that judgment.
`With respect to the Funeral Video, we agree with the district court that
`Defendants were entitled to summary judgment on their fair- use defense. Even at the
`summary judgment stage, all of the fair-use factors favor Defendants . We therefore
`affirm the district court’s grant of summary judgment as to the Funeral Video.
`III
` “We review the district court’s summary judgment decision de novo, applying
`the same standards as the district court.” Punt v. Kelly Servs. , 862 F.3d 1040, 1046
`(10th Cir. 2017). “Summary judgment is proper if, viewing the evidence in the light
`most favorable to the non -moving party, there is no genuine dispute as to any
`material fact and the movant is entitled to judgment as a matter of law.” Peterson v.
`Martinez , 707 F.3d 1197, 1207 (10th Cir. 2013). However, “[ t]he mere existence of
`some alleged factual dispute between the parties will not defeat an otherwise properly
`supported motion for summary judgment; the requirement is that there be no genuine
`issue of material fact.” Scott v. Harris , 550 U.S. 372, 380 (2007) (quoting Anderson
`v. Liberty Lobby, Inc. , 477 U.S. 242, 247 –48 (1986)).
`To determine whether a “genuine issue” as to a material fact exists, we
`consider “whether the evidence presents a sufficient disagreement to require
`submission to a jury or whether it is so one- sided that one party must prevail as a
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`matter of law.” Anderson , 477 U.S. at 251 –52; accord SEC v. GenAudio, Inc. , 32
`F.4th 902, 920 (10th Cir. 2022). Furthermore, “[m]ere allegations unsupported by
`further evidence . . . are insufficient to survive a motion for summary judgment.”
`James v. Wadas , 724 F.3d 1312, 1319 –20 (10th Cir. 2013) (omission in original)
`(quoting Baca v. Sklar , 398 F.3d 1210, 1216 (10th Cir. 2005)); accord Potts v. Davis
`Cnty., 551 F.3d 1188, 1192 (10th Cir. 2009).
`IV
` Plaintiffs first argue that the district court erred in concluding that Mr. Sepi
`was acting within the scope of his employment when filming the first seven videos at
`issue in this appeal because “Mr. Sepi’s scope of employment as a tour videographer
`did not extend to cinematography [or] film editing conducted on his own time outside
`of tours .” Aplts.’ Opening Br. at 66 (emphasis added). Rather, Plaintiffs claim that
`“Mr. Sepi was employed to take photography and videography of park tours.” Id. at
`67. Plaintiffs assert that the seven videos were created while Mr. Sepi was engaged
`in “the production and editing of music videos”— a task far afield from recording
`park tours —and were thus not made within the scope of Mr. Sepi’s employment. Id.
`Defendants note that Plaintiffs assert a new theory on appeal. See Aplees.’
`Resp. Br. at 2 (“On appeal, Plaintiffs have invented a new theory —that, yes,
`[Mr.] Sepi was hired as a videographer, but only to record visitors during Park tours.
`Plaintiffs failed to raise this argument below, such that it is waived.”). Our review of
`the district court proceedings confirms Defendants’ contention concerning this
`theory.
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`“We have held that an appellant waives an argument if she fails to raise it in
`the district court and has failed to argue for plain error and its application on appeal.”
`Jacks v. CMH Homes, Inc. , 856 F.3d 1301, 1306 (10th Cir. 2017) (quoting Campbell
`v. City of Spencer , 777 F.3d 1073, 1080 (10th Cir. 2014)). “And our forfeiture- and-
`waiver rule applies even ‘when a litigant changes to a new theory on appeal that falls
`under the same general category as an argument presented at trial.’” Id. (quoting
`Schrock v. Wyeth, Inc. , 727 F.3d 1273, 1284 (10th Cir. 2013)).
`In the proceedings below, Plaintiffs argued that Mr. Sepi’s “duties for the Park
`were separate from his duties for Whyte Monkee Productions, LLC.” Aplts.’ App.,
`Vol. IV, at 28. Specifically, Plaintiffs argued that he did photography for the Park ,
`that he filmed and produced Joe Exotic TV for Whyte Monkee , and that he was a
`manager and owner of Whyte Monkee at the time, citing his 2021 deposition
`testimony . Although some of Mr. Sepi’s arguments were in direct contravention to
`his 2016 deposition testimony , Mr. Sepi asserted that his 2021 position was the
`correct one.
`Defendants replied that the 2021 deposition testimony should be excluded
`under the sham -affidavit doctrine , which provides that courts should “disregard a[n]
`affidavit [contrary to prior sworn statements] when they conclude that it constitutes
`an attempt to create a sham fact issue. ” Franks v. Nimmo , 796 F.2d 1230, 1237 (10th
`Cir. 1986). The vast majority of the district court’s analysis centered on th is sham-
`affidavit issue. The court concluded that Mr. Sepi’s 2021 testimony should be
`“excluded as a transparent attempt to create a sham issue of fact.” Aplts.’ App.,
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`Vol. VIII, at 264. With the sham -affidavit issue resolved and the 2021 testimony
`excluded, the district court determined (1) that Mr. Sepi did not solely perform
`photography services and (2) that he did not create Whyte Monkee Productions as a
`separate venture for his videography work. Taken together, the district court
`concluded that Mr. Sepi’s works were created within the scope of his employment.
`On appeal, Plaintiffs have reversed course. They now concede, for purposes
`of this appeal, that (1) “Mr. Sepi was involved in both videography and
`photography,” and (2) “that Mr. Sepi was unaware of [Whyte Monkee Productions] at
`the time of formation.” Aplts.’ Opening Br. at 63. However, Plaintiffs now assert,
`for the first time, that “Mr. Sepi’s scope of employment as a tour videog rapher did
`not extend to cinematography [or] film editing conducted on his own time outside of
`tours.” Id. at 66 (emphasis added).
`This line of argument for seeking reversal of the district court’s judgment
`regarding the seven videos is meaningfully different from the argument that Plaintiffs
`raised below. Mr. Sepi first argued that he recorded the videos for Whyte Monkee
`rather than the Park and that he control led Whyte Monkee. Now he argues that he
`recorded the videos for neither the Park nor Whyte Monkee. The new theory is not a
`refinement of the old one; the theories are factually incompatible . Because t his new
`theory is incomp atible with the theories presented below, t he district court
`necessarily had no occasion to consider it.
`Stated another way , Plaintiffs’ argument on appeal was not raised below and is
`forfeited for purposes of appeal. Moreover, Plaintiffs’ failure to now argue for plain -
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`error review waives the issue ; in other words, Plaintiffs have no entitlement to be
`heard on this line of argument for reversal . See United States v. Leffler , 942 F.3d
`1192, 1196 (10th Cir. 2019) (“When an appellant fails to preserve an issue and also
`fails to make a plain -error argument on appeal, we ordinarily deem the issue waived
`(rather than merely forfeited) and decline to review the issue at all —for plain error or
`otherwise.”); United States v. Lamirand , 669 F.3d 1091, 1099 n.7 (10th Cir. 2012)
`(“[T]he failure to argue for plain error and its application on appeal . . . surely marks
`the end of the road for an argument for reversal not first presented to the district
`court . . . . ” (first omission in original) (citation omitted) (quoting Richison v. Ernest
`Grp., Inc., 634 F.3d 1123, 1131 (10th Cir. 2011)) ). And, because this line of
`argument constitutes Plaintiffs’ sole basis for challenging the district court’s entry of
`judgment against them regarding the first seven videos, we uphold that judgment.
`V
` Next, 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. Aplts.’ Opening Br. at 23. 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.” Id. at 16. Furthermore,
`Plaintiffs argue that the second and third statutory factor s point in their favor, as “the
`work was not published, is not factual,” and “the heart of the work was taken.” Id.
`Finally, Plaintiffs allege that the fourth factor counsels in their favor, as “there was
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`no showing below, on this affirmative defense, of a lack of market harm.” Id.
`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.” Aplts.’ Am. Suppl. Br. at 11.
` 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.
`A
`Although copyright holders generally retain exclusive rights to reproduce,
`display, and license their works, see 17 U.S.C. §§ 106–106A, these rights are not
`absolute. Through the Copyright Act, Congress has carved out certain exceptions to
`a copyright holder’s control over their works, including, as relevant here, the fair- use
`doctrine. See 17 U.S.C. § 107. Under § 107 of the Copyright Act, “a copyright
`holder cannot prevent another person from making a ‘fair use’ of copyrighted
`material.” Google LLC v. Oracle Am., Inc. , 593 U.S. 1, 18 (2021). This doctrine
`embodies “an ‘equitable rule of reason’ that ‘permits courts to avoid rigid application
`of the copyright statu te when, on occasion, it would stifle the very creativity which
`that law is designed to foster.’” Id. (quoting Stewart v. Abend , 495 U.S. 207, 236
`(1990)).
`The doctrine acts as an affirmative defense by someone who has used a
`copyrighted work in a secondary work without the permission of the copyright
`holder. See Bell v. Eagle Mountain Saginaw Indep. Sch. Dist. , 27 F.4th 313, 320 (5th
`Cir. 2022) (“In the copyright realm, fair use is an affirmative defense . . . .”) .
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`The Copyright Act sets out four nonexclusive factors that courts must consider
`in determining whether the use of a protected work is a fair use:
`(1) the purpose and character of the use, including whether such use
`is of a commercial nature or is for nonprofit educational purposes;
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`(2) the nature of the copyrighted work;
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`(3) the amount and substantiality of the portion used in relation to the
`copyrighted work as a whole; and
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`(4) the effect of the use upon the potential market for or value of the
`copyrighted work.
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`17 U.S.C. § 107. When evaluating fair use, all of the factors “are to be explored, and
`the results weighed together, in light of the purposes of copyright.” Campbell v.
`Acuff-Rose Music, Inc. , 510 U.S. 569, 578 (1994); accord Warhol , 598 U.S. at 551.
`“The purpose of copyright is to create incentives for creative effort. ” Sony Corp. of
`Am. v. Universal City Studios, Inc. , 464 U.S. 417, 450 (1984). The central concern is
`“the problem of substitution —copyright ’s bête noire.” Warhol, 598 U.S. at 528.
`“Fair use is a mixed question of law and fact.” Harper & Row Publishers, Inc.
`v. Nation Enters ., 471 U.S. 539, 560 (1985). However, “the court may resolve issues
`of fair use at the summary judgment stage where there are no genuine issues of
`material fact as to such issues.” Bill Graham Archives v. Dorling Kindersley Ltd. ,
`448 F.3d 605, 608 (2d Cir. 2006).
` “As with all affirmative defenses . . . the defendant bears the burden of proof”
`on demonstrating fair use. Monge v. Maya Mags., Inc. , 688 F.3d 1164, 1170 (9th Cir.
`2012).
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`B
` In assessing whether Defendants’ use of the Funeral Video is a fair use, each