Taking excerpts of news articles does not typically qualify as a fair use. AP v. MELTWATER

Taking excerpts of news articles does not typically qualify as a fair use. AP v. MELTWATER

Copyright law grants the creator of a new expressive work of art certain exclusive rights. When an artist paints a picture, takes a photograph or creates art in some other tangible medium, the artist is granted a copyright to their creation.  A copyright grants its owner the exclusive right to reproduce, distribute, display, perform, transmit or make derivative works based on the original work. If someone other than the the owner of copyright attempts to exercise one of these exclusive rights, that can be considered copyright infringement.  A copyright owner can file a lawsuit to stop copyright infringement with an injunction and can request monetary damages for copyright infringement which has occurred.

Copyright law in the United States grants the owner of a copyright the ability to control how a copyrighted work is used, however there are some limits to a copyright owner’s rights.   The purpose of copyright law is to promote creativity and advance society, therefore copyright law will excuse what would normally considered copyright infringement in some circumstances.  A defendant will not be liable for copyright infringement if the defendant’s use of a copyrighted work is considered a fair use. Fair use generally falls into two categories, (1) commentary and criticism, or (2) parody. Fair use is a defense to an allegation of copyright infringement that must be plead by the defendant.

When a court is presented with a fair use defense to copyright infringement, the court will review several factors to determine if the use qualifies as a fair use.  Those factors are: (1) the purpose and character of the use, (2) the nature of the copyrighted work, (3) the amount and substantiality of the portion taken, and (4) the effect of the use upon the potential market for the copyrighted work. How a court will weigh each of these factors is fact specific and open to interpretation, therefore it is useful to review court cases to learn how courts have interpreted fair use in the past.

ASSOCIATED PRESS v. MELTWATER US HOLDINGS INC., 12-1087 (S.D.NY 2013) is an example of a case where the court held that fair use did not protect the Defendant even though the entire work was not copyrighted.

Plaintiff is a news cooperative owned by over 1400 newspapers.  Plaintiff generates over 2000 news articles a day which can be published by its member newspapers.  Defendant is an Internet media monitoring service that uses a web crawler program to scrape news articles on the web.  Defendant then performs various functions with the scraped news articles such as generating excerpts, distributing those excerpts to subscribers and allowing subscribers to search an online database of scrapped articles.  Plaintiff sued Defendant for copyright infringement.  Defendant responded claimed that it’s distribution of Plaintiff’s copyrighted works were protected by fair use.

The District Court reviewed the four fair use factors in turn.  The court found that Defendant’s use was not transformative because Defendant was merely automatically capturing and republishing segments of text from the articles without adding commentary or insight.  The purpose and character of the use strongly weighed against fair use because it was Defendant’s motive was commercial profit.  The nature of works weighed slightly in favor of finding fair use because Plaintiff’s articles were factual in nature and were already published. The amount and substantiality of the portion used weighed strongly against a finding of fair use because Defendant’s excerpts typically took the heart of the story.  Finally, the effect on the market weighed strongly against a finding for fair use because Plaintiff would license it’s work and Defendant refused to buy a license.  Defendant’s competition with Plaintiff for customers combined with its refusal to license the content created by the Plaintiff gave Defendant an unfair advantage in the marketplace.

Ultimately the court concluded that Defendant’s use did not qualify as a fair use and  granted summary judgement in favor of the Plaintiff.

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