United States: Russian State-Sponsored TV Network's Attempt To Dismiss Copyright Lawsuit On Fair Use Grounds Denied
g at xny.io
Sat Sep 10 06:19:14 PDT 2022
On Thu, Mar 24, 2022, 12:05 PM Gunnar Larson <g at xny.io> wrote:
> In other news, related to Meta's (FB) logo being very similar to the
> Moscow Stock Exchange logo, something similar has been discussed in New
> York. I found this quote very interesting:
> - "Lastly, regarding the fourth factor, concerning the effect of the
> use on the potential market for or value of the copyrighted work, the Court
> noted that this factor "ask[s] not whether the second work would
> *damage* the market for the first (by, for example, devaluing it
> through parody or criticism), but whether it *usurps* the market for
> the first by offering a competing substitute."
> TV-Novosti, a non-profit operating the Russian state-controlled
> RT(formerly Russia Today) television networks and 38 associated RT YouTube
> channels, has been sued for copyright infringement by Business Casual, an
> American media company that creates documentary content, based on its use
> of translated clips of Business Casual's documentaries in its own videos
> posted to YouTube.
> Business Casual creates short original historical documentaries which it
> posts to its YouTube channel. Its documentaries frequently feature
> photographs of historical figures, using a process called "parallax" which
> "transforms century-old low-resolution photographs into dramatically
> restored high-resolution photographs" and "turn[s] two-dimensional images
> into three-dimensional models . . . simulating a depth-of-field. This
> optical illusion provides Business Casual's videos with an immersive
> three-dimensional look and feel."
> The lawsuit relates to two of Business Casual's documentaries—"How
> Rockefeller Built His Trillion Dollar Oil Empire" and "J.P. Morgan
> Documentary: How One Man Financed America"—clips of which Business Casual
> alleges TV-Novosti incorporated into three separate videos on its
> "RT-Arabic" YouTube channel, including portions featuring parallax-enhanced
> images, altering the brightness and saturation of the copied content and
> replacing Business Casual's watermark with TV-Novosti's own in order to
> hide from YouTube's algorithms.
> TV-Novosti moved to dismiss the copyright claims, arguing that it's use of
> the clips is protected as fair use. However, after considering each of the
> four statutory factors, Judge Koeltl of the Southern District of New York
> denied TV-Novosti's motion, holding that while three of the four factors
> weighed against finding fair use, "[t]he fourth factor, which the Supreme
> Court has described as 'the single most important element of fair use,'
> cannot be determined without further factual development."
> Specifically, regarding the first factor, concerning the transformation of
> the use, Judge Koeltl found that while TV-Novosti's videos take portions of
> the plaintiff's videos, re-arrange them, and add new commentary to them,
> TV-Novosti had not made any meaningful changes to the visual clips
> themselves, and "[m]erely overlaying new audio does not effect a sufficient
> transformation . . . to find fair use as a matter of law." The Court
> further noted that TV-Novosti had "not changed the purpose of the
> parallax-enhanced images," i.e., to provide visual illustration for the
> overlain audio commentary, but had instead "simply lifted the copyrighted
> depictions . .. for the purpose of illustrating [TV-Novosti's] own video."
> In addition, the Court found that the fact that TV-Novosti could have
> sought to pay for the clips, but didn't, and tried to hide its use of the
> excerpts from YouTube's algorithms, also weighed against a finding a fair
> use under the first factor.
> Regarding the second factor, concerning the nature of the copyrighted
> work, the Court initially noted that factual material such as that at
> issue, "cuts less closely to the core of copyright." Nevertheless, the
> Court held that the fact that source material for Business Casual's videos
> was in the public domain weighed against finding fair use, because TV
> Novosti could have simply used public domain photos of the historical
> figures, rather than the modified clips, to create its videos.
> Regarding the third factor, concerning the amount of use in relation to
> the copyrighted work as a whole, the Court noted that while only "small
> portions of the entire copyrighted works were used"—excerpts of 7 seconds,
> 1 minute and 28 seconds, and 8 minutes and 50 seconds in length—the
> portions were "not so trivial as to warrant dismissal under the de minimis
> Lastly, regarding the fourth factor, concerning the effect of the use on
> the potential market for or value of the copyrighted work, the Court noted
> that this factor "ask[s] not whether the second work would *damage* the
> market for the first (by, for example, devaluing it through parody or
> criticism), but whether it *usurps* the market for the first by offering
> a competing substitute." With this framing, the Court thus found that while
> one the one hand, TV-Novosti's "videos are alternative ways of learning
> about the lives of J.P. Morgan and John D. Rockefeller," on the other hand,
> they "have a broader focus and are in a different language, meaning that
> they cater to a different audience." These differences, the Court held,
> were significant enough to preclude the Court from "determining the effect
> of [TV-Novosti's] videos on the market for [Business Casual's] videos at
> this time."
> The Court's recognition of the weight of the fourth factor in determining
> fair use means that there may still be hope for TV-Novosti—time (and fact
> discovery) will tell. For now, the takeaway may very well be that parties
> seeking to raise a fair use defense should take care to emphasize any
> characteristics of their use that distinguish not just their work, but its
> target audience, including the scope of the work and the language (if any)
> which communicates it.
> *Gunnar Larson - xNY.io <http://www.xNY.io> | Bank.org <http://Bank.org>*
> - Digital Currency
> - Entrepreneurship and Innovation (ip)
> G at xNY.io
> New York, New York 10001
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