Copyright Infringement or Transformative Work?
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The fair use doctrine was recently examined and applied Fox News Network, LLC v. TVEyes, Inc., 2014 WL 4444043 (S.D.N.Y. Sept. 9, 2014). TVEyes is a media-monitoring subscription service that “records the entire content of television and radio broadcasts and creates a searchable database of that content.” This service allows subscribers to search keywords or phrases to determine and review an aggregation of instances of the search term appearing in the media. Subscribers include businesses and governmental agencies such as the White House, United States Army, and local and state police departments—the service is not available to members of the general public. Clips are limited to ten minutes in length, and a majority of the clips are two minutes or less. Users are required to agree to use the clips for internal purposes only.
Fox News took issue with TVEyes’ commercialization of its copyrighted broadcasts and sued for infringement. It contended that TVEyes’ service would have a detrimental effect on the existing market for rebroadcasts of its copyrighted content, which Fox News made available online and also licensed to third parties.
TVEyes raised a fair use defense, and both sides moved for summary judgment. The court began with the proposition that “[t]ransformation almost always occurs when the new work ‘does something more than repackage or republish the original copyrighted work.’” (Slip op. at 13, citing Authors Guild, Inc. v. HathiTrust, 755 F.3d 87 (2d Cir. 2014).)
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