The principle of Fair Use is ofter sited by media makers, but the steps needed to determine Fair Use are complex and sometime confusing. See:  When faced with the defendant TV station’s motion to dismiss a photographer’s copyright infringement lawsuit, a federal court in New York was forced to analyze the factors which determine whether the media’s use of another’s copyrighted material falls into the category of fair use. The court in this case found that fair use was not present.

Court finds news station’s claim of fair use to be lacking

The case is Shirman v. WHEC-TV in the U.S. District Court for the Western District of New York. The plaintiff in the case, Boris Shirman, is a photographer who created a video montage based on interviews and photographs he had taken related to the then-upcoming 2016 presidential election, specifically covering first-time voters at a local high school as they considered the competing campaigns. A local NBC affiliate in Rochester, WHEC-TV, used portions of Shirman’s footage in an election-eve story, adding the station’s own graphics and voice-over. Shirman sued for copyright infringement in federal court, and the defendant TV station filed a motion to dismiss the case, citing fair use as a defense to the infringement claim.

“Fair use” is a valid defense to claims of copyright infringement, when the alleged infringer makes limited use of copyrighted material for limited purposes such as education, research, criticism, or, as in this case, news reporting. When evaluating whether a party’s claim of fair use is valid, courts analyze the facts of the case against four factors, which is what the court did here. The four fair use factors, according to federal copyright law (specifically, 17 U.S.C. § 107), are:

  1. The purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
  2. The nature of the copyrighted work;
  3. The amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
  4. The effect of the use upon the potential market for or value of the copyrighted work.

Courts will not require that a defendant meet each fair use factor in order to succeed in having a claim of infringement dismissed, but will instead weigh the factors together to determine a fair outcome.

WHEC-TV argued as to the first factor that, since it had used the video as part of a news report, this should exempt it from copyright infringement claims. However, the court’s opinion pointed out that if the use of copyrighted material “merely repackages or republishes” a work, even if in a news report, it is “unlikely to be deemed a fair use.” Instead, the court explained that the use should be transformative in some way. The court cited a Ninth Circuit decision that found infringement where a news station that had used another station’s footage “for the same purpose for which it would have been used had it been paid for,” whereas it found no infringement where a different station integrated that footage into a montage, adding graphics over a re-tinted version of the footage. The court concluded in the present matter that WHEC’s use of Shirman’s footage “did not change its purpose” by adding “new information, new aesthetics, new insights and understandings.”

Regarding the second factor, the nature of the copyrighted work, the court concluded that, since Shirman had previously published the work and, while creatively edited, it largely contained factual information, this factor leaned in WHEC’s favor. The court also declined to “definitively determine the weight of the third factor.” The court reasoned that a substantial portion of the news segment in question consisted of Shirman’s video, but that, since the purpose of WHEC’s use of Shirman’s video was still in dispute, the effect of this factor was unclear.

Finally, the court looked at the effect on the potential market, and whether, “if the challenged use becomes widespread, it will adversely affect the potential market for the copyrighted work.” Here, the court concluded that this factor weighed in favor of finding copyright infringement. Since Shirman makes videos of a newsworthy nature that he licenses to news stations, and since WHEC broadcasts videos for which it has obtained licenses, “WHEC adversely impacted the potential market for Shirman’s work.” In fact, the court went on to reason that, “if such conduct became widespread, it would destroy the market for Shirman’s work.”

The factors which influenced the court’s opinion most significantly were the first and fourth factors – the court found that the station’s use of Shirman’s work was not transformative, and the risk of market harm was high. Based on its combined analysis and weighing of these four factors, the court denied WHEC’s motion to dismiss Shirman’s copyright infringement complaint.