In our February 2011 article, we discussed the four factors that are considered by courts in determining whether "fair use" (a defense to infringement) exists under U.S. copyright law. The first factor-the purpose and character of the use-includes an analysis of whether the use is "transformative." According to the U.S. Supreme Court, a use is transformative if it so alters the original work that it creates a new expression, meaning or message. Campbell v. Acuff-Rose Music, 510 U.S. 569 (1994). This is a relatively vague test and a relatively new doctrine under U.S. copyright law. What we do know is that the commercial nature of the use will be given less weight in determining whether fair use exists if the use is deemed transformative.
Readers of this article may recall the iconic Obama "Hope" poster in which then-Presidential candidate Obama appears pensive, and the word "HOPE" appears underneath his portrait in capital letters. The poster is a stylized combination of red, white, light blue and dark blue, and it is based on a photograph taken by an Associated Press freelance photographer. The artist who created the poster did not seek permission from the photographer before creating the poster, and he was subsequently sued by the Associated Press. Associated Press claimed that the Obama poster was substantially similar to its photograph and that the artist had a history of using other people's work without permission; the artist claimed fair use. The case ultimately settled, but the poster stands as recognizable example of a use that straddles the line between transformative and infringing.
Two other cases illustrate where courts have drawn the line between transformative and non-transformative uses in the media context. In Los Angeles New Service v. KCAL-TV Channel 9, 108 F. 3d 1119 (9th Cir. 1997), the Los Angeles News Service (LANS) shot video of the beating of Reginald Denny, a white truck driver, by four black assailants. For those of you too young to remember, the incident was part of the 1992 Los Angeles riots, which were spurred by a video of Rodney King, a black man, being beaten by four LAPD police officers. The officers were acquitted a year later, and Denny was caught in the aftermath. KCAL sought permission from LANS to use the videotape, but permission was refused. KCAL obtained the tape from another station and used it in connection with its news programs.
Applying the four factors used to determine fair use, the court held: (i) the fact that the use was for news reporting was not determinative because the two parties were competitors; (ii) the nature of the work was highly factual, which weighed in favor of KCAL; (iii) although only a small part of the tape was used, it was the part that mattered; and (iv) KCAL adversely affected the market for the work by not obtaining a license. All things considered, the court held that KCAL's use of the video was not fair use.
In the recent case of Fox News Network, LLC v. TVEyes, Inc., Case No. 13 Civ. 5315 (AKH) (Sept. 9, 2014), the court held that TVEyes had the right to compile and make available to its subscribers a database of news stories searchable by content. In reaching its decision, the court held that the use was transformative because TVEyes created a searchable database of television and radio broadcasts not otherwise available to the public. In considering the other fair use factors, the court emphasized the fact that subscribers to the TVEyes database were contractually prohibited from reproducing or disseminating the stories and could access them only for their personal use. In addition, TVEyes deleted the content after 30 days. According to the court, a significant portion of TVEyes' subscribers are law enforcement personnel, and the main use of the database is for public safety. This fact weighed heavily in the court's decision.
For the most part, the law on transformative uses under U.S. copyright law is only 20 years old, and courts continue to struggle to define the line between a derivative work and a transformative use. Under our copyright statute, the owner of the copyright in the original work has an exclusive right not only to the original work but also to all "derivative" works. A derivative work is something that is based on the original work; a transformative work is also clearly "based on" the original work. Thus, the question for courts is whether the new work is so different from the original work that our copyright laws should not prevent the commercialization of that new use. In essence, the inquiry in which courts engage in deciding these questions is not so much a legal one (because the legal standards are vague) but one of public policy. In LANS v. KCAL, a station used a competitor's video after permission was refused. This conduct struck the court as unfair, whereas in TVEyes, the court clearly was swayed by the fact that the use facilitated law enforcement and, therefore, had a strong public safety component.
