From Plagiarism Today:
Fair use rulings are generally not earth-shattering. As a very fact-specific area of copyright law, individual fair use rulings tend to apply more to the case at hand than the broader legal landscape.
This means that court rulings on fair use tend to shift at a glacial pace. Not through one sweeping ruling, but rather, through the slow drift of countless smaller rulings.
Still, every once in a while there’s an earthquake that can shake up the fair use landscape and send it drifting in another direction.
One such example of this is the 1994 Supreme Court’s decision in the case Campbell v. Acuff-Rose Music, Inc.. The case, which dealt with a parody of the Roy Orbison song Pretty Woman, found the parody work to be a fair use and non-infringing. The case not only strengthened protections for parodies under fair use but emphasized the importance of “transformativeness” when analyzing a use for fair use.
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However, a recent ruling from the Second Circuit Court of Appeals may challenge the dominance of transformativeness.
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TVEyes is a media clipping service that works by archiving content from television and radio and then transcribing it to make it text-searchable. It’s commonly used by companies or celebrities to find out when they are mentioned in the media and is also used by TV shows like The Daily Showto find clips relevant to a story they are working on.
In 2014 Fox News filed a lawsuit against TVEyes for alleged copyright infringement. They claimed that TVEyes was using their content without a license and doing so in an infringing way. Though Fox never claimed the search function was infringing, it took issue with the way TVEyes allowed both playback and sharing of clips from their TV shows.
TVEyes claimed that their use is a fair use, especially since they limit access to 10-minute clips and only to content relevant to the search.
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[I]t’s been difficult, if not impossible, for a rightsholder to win a case when the defendant can show that their use is transformative. To make matters worse for plaintiffs, the definition of what is considered transformative seemed to be ever-expanding.
This reached a possible zenith in 2013 when the Second Circuit ruled appropriation artist Richard Prince was not infringing photographer Patrick Cariou by taking his photos and drawing on them. In that case, the court ruled that the transformativeness did not hinge on Prince making commentary about Cariou’s work or even pop culture at large.
What makes the TVEyes ruling shocking and possibly groundbreaking is that the court agreed that TVEyes’ video function was transformative and that the first factor favored TVEyes, “albeit slightly”.
The problem was that the transformative nature of TVEyes was outweighed, in the court’s eyes, by the fourth factor, which looks at the potential harm to the market. According to the court, the success of TVEyes shows that there is a potential market for Fox’s content in this are[a] and that, by not obtaining a license from Fox, are harming their ability to exploit their own work.
According to the court, this harm to the market outweighed the transformative nature of TVEyes and made the service an infringement.
The court also paid special attention to the third factor, which the court said favored Fox because end users of TVEyes could “see and hear virtually all of the Fox programming that they wish.”
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If the ruling survives the test of time, it means that transformativeness will not be the nearly sole deciding factor in fair use cases. Uses that can have a significant impact on the potential market of a work can found to be infringing, even if they are transformative in nature.
Link to the rest at Plagiarism Today
As PG has mentioned previously, in his perfect world, the boundaries between fair use and infringing use would be clearer. The case discussed in the OP certainly did not serve that end.
PG hasn’t read the court’s opinion yet, but he wonders if the judges gave too much emphasis to the video elements of the TVEyes services instead of the transcription and searchable text elements of the service. PG suspects that most of TVEyes’ customers subscribe to the service for searchable text while video clips are a nice-to-have only.
PG also wondered if Fox is or was a TVEyes subscriber.