IP Law Daily, COPYRIGHT—S.D.N.Y.: Peacock TV and NBC’s fair use defense to copyright infringement claim rejected for now, (May 9, 2024)

By Thomas K. Lauletta, J.D.

The defendants failed to prove that their affirmative fair use defense warranted dismissal of the plaintiff’s copyright infringement claims.

The U.S. District Court in New York City rejected the motion of the defendant media companies to dismiss the plaintiff’s copyright infringement claims for failing to state a claim under Federal Rule of Civil Procedure 12(b)(6). In so ruling, the court noted that under the Copyright Act, fair use of copyrighted materials is a complete defense to a claim of copyright infringement. Here, however, the defendants failed to prove that the four factors to establish fair use under the Copyright Act weighed in their favor at this early stage in the litigation (Lynk Media, LLC v. Peacock TV LLC , No. 23-cv-5845 (S.D.N.Y. May 8, 2024)).

Plaintiff Lynx Media owns copyright registrations (PA 2-354-255 and PA 2-354-298) for two videos: one of a press conference about voter fraud given by Rudy Giuliani, and a second video showing the interaction between supporters of Joe Biden and Donald Trump. Defendants Peacock and NBC thereafter made a documentary about the Giuliani press conference and its effects on a particular landscaping company, using segments of the plaintiff’s videos. This documentary aired on Peacock on November 7, 2021. At about the same time, NBC aired a program that incorporated parts of the Peacock documentary and discussed the making of that documentary.

Lynx thereafter sued Peacock and NBC for copyright infringement. Citing the doctrine of fair use of copyrighted works, the defendants moved to dismiss the plaintiff’s complaint for failing to state a claim under Federal Rule 12(b)(6).

Fair use defense. The court noted that because fair use is an affirmative defense, the defendants bore the burden of proving it. In analyzing the defendants’ fair use claim, the court utilized four factors listed in the Copyright Act: (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 (17 U.S.C. § 107).

First fair use factor. The court stated that while transformative use is not an absolute requirement for fair use, it is often at the heart of showing fair use. Fair use will not be established if the use of copyrighted material merely repackages or republishes the original work. The court concluded that the copying of the plaintiff’s videos was not reasonably necessary to achieve the defendants’ purposes—they could have substituted videos taken at the Giuliani press conference by other videographers rather than using the plaintiff’s copyrighted videos.

The court noted that several questions of fact remained about the purpose behind the defendants’ use of the plaintiff’s videos and the norms of video copying within the news industry. Accordingly, the court ruled the defendants failed to show that their use was transformative. Accordingly, the first fair use factor did not weigh in the defendants’ favor.

Second fair use factor. Under the second fair use factor, courts consider the nature of the copyrighted work, including: (1) whether it is expressive or creative or more factual, with greater leeway being allowed to a claim of fair use where the work is factual or informational, and (2) where the work is published or unpublished, with the scope of fair use involving unpublished works being considerably narrower. The court concluded that the first of these subfactors favored the plaintiff, while the second subfactor favored the defendants. Accordingly, the second fair use factor favored neither the plaintiff nor the defendants.

Third fair use factor. This factor considers the amount and substantiality of the portion used in relation to the copyrighted work as a whole. The defendants argued that their use of the copyright work was “exceedingly narrow;” they used only one minute of the combined 11-minutes of the plaintiff’s two videos in the defendants’ 29-minute documentary. As it previously noted, the court noted that the defendants failed to explain why they used the plaintiff’s videos, when they could have used videos taken by others at the new conference. Because it saw no apparent justification for the copying, the court held that the third fair use factor favored the plaintiff.

Fourth fair use factor. This factor considers whether the defendants’ use will adversely affect the potential market for the copyrighted work. The court noted that a finding of fair use would not adversely affect the market for the plaintiff’s videos. However, the court concluded that the defendants’ use of the plaintiff’s videos would threaten the plaintiff’s licensing markets. The court speculated that if widespread uncompensated use of the plaintiff’s videos developed, potential infringers would be emboldened, with the result that the plaintiff’s ability to obtain compensation for licensing its videos would be undermined. Accordingly, the court found that the fourth fair use factor weighed in favor of the plaintiff.

Court action. Based on the four fair use factors, the court stated that the defendants had not established their fair use defense. Accordingly, the court denied the defendants’ motion to dismiss the plaintiff’s complaint, although the defendants will be able to reassert their fair use defense later as a motion for summary judgment.

The Case is No. 23-cv-5845.

Judge: Koeltl, J.

Attorneys: Craig B. Sanders (Sanders Law Group) for Lynk Media, LLC. Stephen James Barrett (Wilson Elser Moskowitz Edelman & Dicker LLP) for Peacock TV LLC.

Companies: Lynk Media, LLC; Peacock TV LLC

Cases: Copyright NewYorkNews