TV-Novosti, a non-profit organization operating Russia’s state-controlled RT (formerly Russia Today) television networks and 38 associated YouTube RT channels, has been sued for copyright infringement by Business Casual, a company American media company that creates documentary content, based on its use of translated clips of Business Casual documentaries in its own videos posted on YouTube.
Business Casual creates short original historical documentaries which it publishes on its YouTube channel. His documentaries frequently feature photographs of historical figures, using a process called “parallax” that “transforms low-resolution, century-old photographs into dramatically restored high-resolution photographs” and “transforms[s] two-dimensional images into three-dimensional models. . . simulating a depth of field. This optical illusion gives Business Casual videos an immersive three-dimensional look and feel.
The lawsuit concerns two of Business Casual’s documentaries – “How Rockefeller Built His Trillion Dollar Oil Empire” and “JP Morgan Documentary: How One Man Financed America” - clips which Business Casual alleges TV-Novosti was incorporated into three separate videos on his “RT-Arabic YouTube Channel”, including parts featuring parallax-enhanced images, altering the brightness and saturation of copied content, and replacing the Business Casual watermark with TV-Novosti’s in order to hide from algorithms from YouTube.
TV-Novosti offered to deny the copyright claims, arguing that its 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, finding that if three of the four factors weighed against finding fair use, “[t]The fourth factor, which the Supreme Court has described as “the most important element of fair dealing,” cannot be determined without further factual development. »
Specifically, with respect to the first factor, regarding the transformation of use, Judge Koeltl found that if the TV-Novosti videos take parts of the plaintiff’s videos, rearrange them and add new commentary, TV -Novosti did not comment on any significant changes to the visual clips themselves, and “[m]Simply layering new audio files does not perform sufficient transformation. . . to find fair dealing 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 an illustration video for the overlaid audio commentary, but had instead “simply lifted the copyrighted representations. .. for the purpose of illustrating [TV-Novosti’s] own video.” Furthermore, the Court found that the fact that TV-Novosti could have sought to pay for the clips, but failed to do so, and tried to hide its use of the snippets from YouTube’s algorithms, also weighed against a finding of fair use under the first factor.
With respect to the second factor, concerning the nature of the work protected by copyright, the Court first noted that factual elements such as the one at issue “come less close to the heart of copyright “. Nevertheless, the Court held that the fact that the source material of the Business Casual videos was in the public domain weighed against finding fair use, as TV Novosti could have simply used public domain photos of the historical figures, rather as edited clips, to create sound videos.
With respect to the third factor, regarding the amount of use relative to the copyrighted work as a whole, the Court noted that if only “small portions of the entire copyrighted work have been used” – excerpts of 7 seconds, 1 minute and 28 seconds, and 8 minutes and 50 seconds in length – the portions were “not so insignificant as to warrant dismissal under the doctrine of minimis”.
Finally, with respect to the fourth factor, concerning the effect of the dealing on the potential market or value of the copyrighted work, the Court noted that this factor “requires[s] not if the second job would be shame the market for the first (by devaluing it for example through parody or criticism), but if it usurps the market for the first by offering a competing substitute. With this framing, the Court therefore concluded that if on the one hand, the “TV-Novosti videos are alternative means of knowing more about the life of JP Morgan and John D. Rockefeller”, on the other , they “are broader in scope and are in a different language, which means they are aimed at a different audience.” These differences, the court said, were significant enough to prevent it from “determining the effect of [TV-Novosti’s] videos on the market for [Business Casual’s] videos right now.”
The Court’s acknowledgment of the weight of the fourth factor in determining fair use means that there may still be hope for TV-Novosti – time (and discovery of the facts) will tell. For now, it may very well be that parties seeking to invoke a fair use defense are careful to point out any characteristics of their use that distinguish not only their work, but its intended audience, including the scope of the work and the language (if any) communicating it.
Business Casual Holdings, LLC v. TV-NovostiNo. 21-CV-2007 (JGK), 2022 WL 784049 (SDNY March 14, 2022)