‘Transformative Use’ of Hulk Hogan Sex Tape Beats Estate’s Claim

“Fair use” of a Hulk Hogan sex tape is preventing the pro wrestler’s estate from blocking the distribution of a documentary about the fallout from that video.

After initially blocking use of any of the sex tape footage, the US District Court for the Middle District of Florida denied Terry Bollea’s estate a preliminary injunction because the law is likely against efforts to prevent minimal use of the tape for commentary.

“Plaintiffs have not met their burden of showing a substantial likelihood of success on the merits because the documentary’s use of the sex tape is likely to be a fair use,” Judge Thomas P. Barber said Monday. “While the documentary appears to be published in part to seek profit, that fact is not determinative and weighs less heavily in the balance given the transformative nature of the use.”

Other stumbling blocks have emerged impeding Bollea’s son, Nicholas Bollea, from stopping radio host Bubba the Love Sponge Clem from releasing of “Video Killed the Radio Star: The Untold Story of the Hulk Hogan Sex Tape Scandal.”

He sued on behalf of the estate to prevent Clem from showing the film, but instead the production company removed the few seconds from the over two-hour film that included the disputed tape and distributed the video online. Clem was the person who recorded Bollea in a liaison with Clem’s own wife, but says he didn’t leak the tape which precipitated a media firestorm in 2012

Barber said Bollea’s estate has a more fundamental problem—they aren’t technically allowed to sue. Defendants in the case pointed out that probate actions hadn’t designated them as estate representatives prior to them bringing the case.

“Whatever Plaintiffs’ status is or will be, the fact remains that as of the time Plaintiffs filed the lawsuit and obtained a temporary restraining order, they did not have the capacity to pursue relief and therefore had no likelihood of success on the merits,” Barber said.

The court said Bollea’s estate plans to file an amended complaint in the coming days to challenge fair use of the tape. The court has warned them that this will be an uphill argument: roughly 2% of the tape was used in the making of the documentary, and it appears that the portions included in the documentary are at least somewhat taken from news reports about the tape.

Given “the fragmentary and transformative nature of the use, the chance that uses of excerpts such those in the documentary, even if widely repeated by others, could affect a potential market for the sex tape itself would appear to be negligible,” Barber said.

Turkel Cuva Barrios represents the estate. Spencer Fane LLP represents Clem.

The case is McCoy v. Clem, M.D. Fla., No. 8:25-cv-02334, preliminary injunction denied 9/22/25.