Intellectual Property

The 2026 Entertainment Law Forecast: Navigating Fair Use, AI Training, and Trademark Trends

Published: January 22, 2026

by Scott M. Hervey
The IP Law Blog

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.

1. Fair Use and the “Biographical Anchor”: 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 Dispute

Timothy Sepi, owner of Whyte Monkey Productions and a former employee of “Joe Exotic,” filed an infringement claim against Netflix for using approximately one minute of footage he shot of Joe Exotic’s husband’s funeral.

The 10th Circuit’s Narrow Interpretation

While the district court originally ruled in favor of Netflix on fair use grounds, the 10th Circuit Court of Appeals reversed that decision. The panel found 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 Business,” particularly for documentary creators who rely on the following “best practices:

• Biographical Anchors: Using copyrighted clips from popular culture to illustrate an argument or point.
• Historical Markers: Incorporating material to establish a historical sequence.
• Contextual Justification: The belief that using a clip to explain a subject’s history (e.g., an actor’s “modest beginnings”) is a protected fair use.

Why It Matters

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: Sketches from the Zapruder film of the Kennedy assassination.
• Bill Graham Archives v. Dorling Kindersley: Grateful Dead concert posters used in a band history book.
• Elvis Presley Enterprises, Inc. v. Passport Video: Use of television clips featuring Elvis.

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.

2. AI Training and the “How” of Data Acquisition: 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.

Bartz v. Anthropic: The Piracy Framework

In Bartz v. Anthropic, the court issued what is essentially a split decision regarding the training of the “Claude” model.

• Transformative Use: The court found that training models on lawfully-acquired materials could be considered transformative fair use.
• The Piracy Exception: However, the creation of a “central library” using millions of books from pirate sites was not fair use.
• Resolution: Anthropic eventually settled the case for $1.5 billion and the destruction of the pirated datasets.

Kadrey v. Meta: The Market Substitution Theory

In the Kadrey case, authors sued Meta for training “LLaMA” models on “shadow libraries”. The court leaned toward fair use for the training itself but left the door open for plaintiffs if they can prove market harm. If AI outputs function as direct substitutes for the original works (e.g., near-verbatim reproductions or displacing clicks and subscriptions), the fair use defense may fail.

Emerging AI Litigation Trends

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.  2026 will answer whether courts will treat these actions similar to the piracy in Bartz.

3. 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 Dispute

HomeVestors of America, owners of the “We Buy Ugly Houses” and “The Ugliest House of the Year” trademarks, sued Warner Bros. Discovery over the HGTV show title Ugliest House in America. HomeVestors claims the title causes consumer confusion and implies a false affiliation.

The Rogers Test Inflection Point

Discovery moved to dismiss based on the Rogers test, which provides First Amendment protection to titles of expressive works. However, 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.
• HomeVestors provided enough evidence to suggest Discovery used the title in a source-identifying manner to move the case to trial.

I suggest that this 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 Rodgers 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. A final ruling is currently pending following an August 2025 bench trial.

Key Takeaways for 2026

• 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 Rogerstest may no longer provide a “blanket” defense for expressive titles.