Key Takeaways
- Filmmakers should monitor the 10th Circuit for a final ruling on "biographical anchors" to ensure their documentary practices remain protected.
- AI Developers must prioritize the how of data acquisition, as stealth scraping and pirated inputs are becoming dispositive factors for liability.
- Brand Owners and Studios must navigate a shifting trademark landscape where the Rogers test may no longer provide a "blanket" defense for expressive titles.
- The 10th Circuit’s decision in Whyte Monkey Productions v. Netflix has significant implications for documentary filmmakers and their use of copyrighted clips.
- The use of AI in training models and the acquisition of data is a complex and evolving area of law, with significant potential liabilities for developers.
- The application of the Rogers test to television titles is an area of ongoing litigation, with significant implications for brand owners and studios.
Introduction to the 2026 Media and Entertainment Landscape
The year 2025 left the media and entertainment industry with a series of significant, unresolved legal questions. As we move into 2026, several high-profile cases are poised to redefine the boundaries of fair use, the legality of AI training, and the application of the Rogers Test in trademark law. These cases have the potential to significantly impact the way documentary filmmakers, AI developers, and brand owners operate, and it is essential to understand the implications of these cases and the potential consequences for the industry.
The Fair Use Debate: Whyte Monkey Productions v. Netflix
One of the most concerning cases for documentary filmmakers is Whyte Monkey Productions v. Netflix, a dispute involving the hit series Tiger King. The case centers on the use of approximately one minute of footage shot by Timothy Sepi, the owner of Whyte Monkey Productions, of Joe Exotic’s husband’s funeral. The 10th Circuit Court of Appeals reversed the district court’s decision, finding that the use was not fair use because it did not criticize or comment on the footage itself but rather used the footage to comment on Joe Exotic. This ruling has caused significant alarm in the industry, particularly for documentary creators who rely on the use of copyrighted clips as biographical anchors, historical markers, or contextual justifications.
The Implications of the 10th Circuit’s Decision
The 10th Circuit’s decision appears to deviate from years of jurisprudence that protected the use of third-party content as a biographical anchor. Notable precedents at risk include Time, Inc. v. Bernard Geis Associates, Bill Graham Archives v. Dorling Kindersley, and Elvis Presley Enterprises, Inc. v. Passport Video. The 10th Circuit is currently revisiting this decision following widespread criticism from filmmakers, authors, and law professors regarding the misapplication of the Supreme Court’s Warhol decision. The final ruling will have significant implications for documentary filmmakers and their use of copyrighted clips, and it is essential to monitor the 10th Circuit for a final ruling on "biographical anchors" to ensure that documentary practices remain protected.
AI Training and Liability: Bartz v. Anthropic and Kadrey v. Meta
AI litigation was a dominant theme in 2025, with two landmark cases—Bartz v. Anthropic and Kadrey v. Meta—establishing a complex roadmap for AI liability. In Bartz v. Anthropic, the court found that training models on lawfully-acquired materials could be considered transformative fair use, but the creation of a "central library" using millions of books from pirate sites was not fair use. The case was eventually settled for $1.5 billion and the destruction of the pirated datasets. In Kadrey v. Meta, the court leaned toward fair use for the training itself but left the door open for plaintiffs if they can prove market harm. These cases highlight the importance of prioritizing the how of data acquisition, as stealth scraping and pirated inputs are becoming dispositive factors for liability.
The Evolving Landscape of AI Litigation
Plaintiffs are now attempting to apply these frameworks to cases involving "stealth scraping"—the use of undeclared crawlers and the circumvention of robots.txt directives. The year 2026 will answer whether courts will treat these actions similar to the piracy in Bartz. The use of AI in training models and the acquisition of data is a complex and evolving area of law, with significant potential liabilities for developers. It is essential for AI developers to prioritize the how of data acquisition to avoid potential liabilities and ensure that their practices are compliant with the evolving landscape of AI litigation.
Trademark Infringement and the Rogers Test: HomeVestors v. Warner Bros.
The final major area of resolution for 2026 involves the application of the Rogers Test to television titles following the Supreme Court’s decision in Jack Daniel’s Properties, Inc. v. VIP Products. The case centers on the use of the title "Ugliest House in America" by Warner Bros. Discovery, which is alleged to cause consumer confusion and imply a false affiliation with the "We Buy Ugly Houses" and "The Ugliest House of the Year" trademarks owned by HomeVestors of America. The court ruled that the Jack Daniel’s decision does not allow a blanket Rogers defense if the infringer’s use of the mark is source-identifying, and that HomeVestors provided enough evidence to suggest Discovery used the title in a source-identifying manner to move the case to trial.
The Implications of the Rogers Test for Brand Owners and Studios
The case represents an "inflection point" where courts must decide and make corrections if Jack Daniel’s has been over-applied to expressive works—the very context the Rogers test was designed to protect. The Supreme Court in Jack Daniel specifically noted that there may be a "rare occasion where Rogers may be applicable to the use of a mark in connection with an expressive work that also functions as a source identifier." It seems that lower courts have forgotten this caveat. The final ruling is currently pending following an August 2025 bench trial, and it is essential for brand owners and studios to navigate a shifting trademark landscape where the Rogers test may no longer provide a "blanket" defense for expressive titles.
