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.

Recent Second Circuit Cases Make Evidentiary Use of Copyrighted Materials Easier

In this digital age, electronic evidence is ubiquitous.  Websites, blog postings, social media pages and emails abound.  Even in the “real world,” a video or still camera is almost always at hand – most smartphones and tablets have such a function.  For lawyers, these materials are rich with potential evidence in a wide variety of cases.

But what about rights to copyright?  Under the Copyright Act, copyright vests as soon as copyrightable expression is fixed in a tangible medium ─ no registration being required. As soon as someone snaps a picture (or videos an event) on their iPhone, they are an author and hence copyright owner.  

Is a lawyer who gathers such evidence and submits it in a court or arbitration proceeding without permission an infringer?

Two recent cases in the Second Circuit have fact patterns illustrative of how copyrighted materials can be used as evidence. Hollander v. Steinberg, 419 Fed.Appx. 44 (2d Cir. 2011) and Scott v. Worldstarhiphop, Inc., 2011 WL 5082410 (S.D.N.Y. 2011).  These cases strongly suggest that such use will often be protected by the doctrine of fair use, codified at 17 U.S.C. § 107.