copyright fair use

News-Indexing Site Case Limits Fair Use

Copyright protection has long been limited by the fair use doctrine, which allows unlicensed use of others’ content for certain “fair” purposes. 

Many recent decisions have focused on whether a use is “transformative” to determine whether it is fair – meaning it creates something new and different.  But a recent Second Circuit decision involving large quantities of video content rejected a fair use defense even though finding the use transformative.  Companies considering use of others’ content would be well advised to consider the ramifications of the decision.

In the digital world, often there are often huge quantities of copyrighted information that users may wish to sift through to find content they are interested in.  Secondary businesses have arisen that compile and index the content and then allow users to search and locate what they need or are interested in.  Three years ago, in Authors Guild v. Google, Inc., 804 F.3d 202 (2d Cir. 2015), the Second Circuit found such a commercial indexing scheme to constitute “fair use” of the underlying content. 

But recently, in Fox News Network, LLC v. TVEyes, Inc. (2d Cir. 2018), the Second Circuit found another such scheme as not being protected as fair use.  The contrast between the two cases informs users of copyrighted content as to where to draw the line between fair and not fair use.

Unusual Cases Sharpen Copyright Law Principles

Most litigated cases present fairly routine fact patterns with well-established legal principles.  The main point of contention is mustering proof of the facts.  Occasionally, courts confront unusual cases which can serve to sharpen understanding of the underlying legal principles involved.  These cases also highlight and help define for the bar legal concepts that take on a new understanding when reviewed in light of unusual situations.

We review here three recent copyright decisions from New York federal courts that involve unusual facts or legal postures.  Review of these decisions can be both a valuable review of basic copyright concepts and can yield a more nuanced understanding of them.  The lessons learned from these cases include (1) use of the fair use doctrine for obtaining copyright; (2) work for hire principles; and (3) interaction of state contract law and copyright.