Fair Use under Copyright Law and “Transformative Use” – New Case

A recent case has again broadly interpreted the “fair use” doctrine in copyright law.  “Fair Use” is a defense to a copyright infringement lawsuit as explained below.  In Fox News Network v. TVEyes, the Court held that the fair use doctrine insulated TVEyes from copyright infringement liability. 

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 Network sued TVEyes for the infringing use by TVEyes of clips from the FOX News Broadcasts.  Section 106 of the Copyright Act grants the copyright holder the “exclusive right” to “prepare derivative works.” Section 101 of the Copyright Act defines “derivative work” as any “form in which a [preexisting] work may be recast, transformed, or adapted.”  Fox News argued that the use by TVEyes of its news clips is a derivative work.

TVEyes argued the use of the clips was “fair use”.  On summary judgment, the Court said 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).)  The court further said that “there is a strong presumption in favor of fair use for the defendant” when the copied work is being used for one of the purposes listed in § 107, such as criticism, comment, news reporting, teaching, scholarship, or research. It also observed that TVEyes’ service, by providing “the actual images and sounds depicted on television” as well as “the news information itself,” offered a “transformative” service “that no other content provider provides.” The court found the TVEyes’ service analogously “transformative” to the searchable database of scanned books at issue in Authors Guild v. HathiTrust and thumbnail images shown in search engine results as in Perfect 10 v. Amazon.com, but distinguished a rare recent case in which a court had found that the defendant, a news monitoring service for print news that aggregated content for subscribers based on keywords, had failed to prove its fair use defense. Associated Press v. Meltwater U.S. Holdings, 931 F. Supp. 2d 537 (S.D.N.Y. 2013).

After a review of the four (4) fair use factors, the Court found that TVEyes’ use of Fox News broadcast content was “transformative” and thus constituted fair use.

Fair use is a context-specific defense and any reliance on this defense must be reviewed by legal counsel before use of the copyright protected material is made.  If you have any questions whether or not your use of someone’s copyrighted material is “fair use,” please contact us.

Fox News Network, LLC v. TVEyes, Inc., 2014 WL 4444043 (S.D.N.Y. Sept. 9, 2014),

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