United States: Fox News v. TVEyes Copyright Fair Use Decision: A Quick Read For The Busy Practitioner

Last Updated: September 25 2014
Article by David A. Kluft

Last week, Judge Alvin Hellerstein of the Southern District of New York issued his opinion Fox News v. TVEyes. Fox News claimed that TVEyes' media monitoring service was copyright infringement. TVEyes argued that it was fair use. Here is our summary version of the case:

What is TVEyes?

TVEyes is a media-monitoring service that records content from over 1,400 TV and radio news outlets, and uses speech-to-text technology to create a searchable database of transcripts of that content. TVEyes subscribers include corporations, the U.S. military, the media, the White House and 100 members of Congress. They pay $500 per month for the service.

So, let's say you are a politician and want to find out what people are saying about you. Your account keeps an eye out for various keywords, for example your name, and spits out a results list. Oh, look, you were mentioned three times today, including five minutes ago on the O'Reilly Factor (which is presumably either very good or very bad news). The TVEyes results show a highlighted portion of the transcript, next to a short video clip containing the relevant excerpt The content stays on the TVEyes system for 32 days.

Fox News' Allegations

In 2013, Fox News brought a claim for copyright infringement against TVEyes. Fox News alleged that TVEyes's copying of its clips threatened its business in three basic ways: (a) it created a substitute for viewing Fox News on cable television; (b) it harmed ad revenue on Fox News' website, which includes some of the same clips; and (c) it competed with Fox News' licensing of its own clips to other news organizations. TVEyes moved for summary judgment on the grounds of fair use.

The Court's Fair Use Analysis:

  • Factor 1: The Purpose and Character of the Use. Judge Hellerstein stated that, although TVEyes was a for-profit service, the first factor turned on whether the use was "transformative." Fox News relied on Associated Press v. Meltwater, in which the Southern District of New York held that a searchable database of news stories was not transformative, in part because it appeared to be acting as a substitute for the original sources of the stories. TVEyes, on the other hand, relied on Authors Guild v. Hathi Trust, in which the Second Circuit held that the defendant's full-text searchable database of books, used for research purposes, was transformative. Judge Hellerstein agreed that TVEyes' keyword search feature was a service not available anywhere else and, like the Hathi Trust database, was a transformative aid to learning and research. This factor therefore weighed in favor of fair use.
  • Factor 2: The Nature of the Copyrighted Work. This factor was neutral. Although there is greater leeway for fair use when the underlying work is largely factual (as here), the parties did not dispute that Fox News' programs were creative enough to be subject to copyright protection.
  • Factor 3: The Amount and Substantiality of the Portion Used. There was no question that TVEyes copied all of Fox News' content. However, the Court held that this was no more than was necessary to TVEyes' transformative purpose, and therefore this factor was also neutral.
  • Factor 4: The Effect of the Use on the Potential Market. Judge Hellerstein found that TVEyes was not being used as market substitute for the original. The average playing time of a clip by a TVEyes subscriber was only 41 seconds, i.e. they were not using the service to view substantial portions of the programs. Moreover, Fox News was unable to provide evidence of lost licensing fees. The Court also found that any market harm that existed was outweighed by the substantial public benefit TVEyes provided, particularly considering its use by government agencies.

But Not Everything was Fair Use . . . At Least Not Yet

The foregoing analysis applied only to TVEyes' copying of Fox News broadcasts for its keyword database. TVEyes provides other features about which the Court was not so sure. For example, TVEyes subscribers can download and email clips, which may not be integral to the transformative purpose. Furthermore, subscribers can search clips not just by keyword but by date and time, which in theory is more likely a potential substitute for viewing the original on cable. Judge Hellerstein refused to rule on these additional features, and instead scheduled a status conference to determine how to develop a more complete factual record about them.

Hot News Misappropriation Preempted

Finally, Fox News had also pled a "hot news misappropriation" claim. This cause of action derives from the 1918 Supreme Court decision in International News Service v. Associated Press, which prohibited a news organization from "free-riding" on the efforts of another news organization by appropriating its non-copyrightable but valuable time-sensitive information. However, Judge Hellerstein dismissed this count, holding that it was preempted by the modern Copyright Act.

To view Foley Hoag's Trademark and Copyright Law Blog please click here

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