On Thu, Mar 24, 2022, 12:05 PM Gunnar Larson <g...@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." > > ---------- > > https://www.mondaq.com/unitedstates/copyright/1174834/russian-state-sponsored-tv-network39s-attempt-to-dismiss-copyright-lawsuit-on-fair-use-grounds-denied?email_access=on > > 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 > doctrine." > > 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>* > MSc > <https://www.unic.ac.cy/blockchain/msc-digital-currency/?utm_source=Google&utm_medium=Search&utm_campaign=MSc-Digital-Currency-North-America&utm_term=blockchain%20unic&gclid=Cj0KCQiAyJOBBhDCARIsAJG2h5ctwwMz0MRbVSk-LaYD-GMU5UgDSw7ynxbGr_a7SkaFAZzJc1-pzxEaAi4NEALw_wcB> > - Digital Currency > MBA > <https://www.unic.ac.cy/business-administration-entrepreneurship-and-innovation-mba-1-5-years-or-3-semesters/> > - Entrepreneurship and Innovation (ip) > > g...@xny.io > +1-646-454-9107 > New York, New York 10001 >
