Using Podcast Transcripts Under The Fair Use Doctrine

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Podcast Transcripts

Overview

Fair use doctrine is based on testing every case on the four-factors. The four factors are the purpose of use, nature of work, the amount of use, and impact on the market. We have analyzed each of these factors and have discussed one case related to each factor. Then we have analyzed a case which is closest to the podcasting transcription usage. While we could not cover all the cases we found in the standard Wonder request timeframe, additional cases can be found archived at the Stanford University Libraries Law web archive.

Findings

Fair use doctrine is based on applying four-factor tests to every case. These four factors are:

1) Purpose and character of use
a. Any usage, which is done for the commercial or for-profit purpose will weigh negatively and usage which is done for educational or for a non-profit purpose will weigh positively for fair use doctrine.

b. Any usage, which is transformative in nature, will weigh positively and usage which is iterative in nature will weigh negatively for fair use doctrine.

c. A case in point is Dr. Seuss Enterprise, L. P v. Penguin Books, USA, 1997. In this case, the author mimicked the style of Dr. Seuss book. Also, the author didnt create a parody and was telling the story in satirically way. Hence, the authors work was considered non-transformative and commercial and hence was considered not a fair use case.

2) Nature of copyrighted work

a. Any usage, which is done from a creative work or fiction, weighs negatively and usage which is done from a factual or informative work weighs positively for fair use doctrine.

b. Any usage, which is done from a published work, weighs positively and usage which is done from unpublished work weighs heavily against fair use doctrine.

c. A case in point is Leadsinger, Inc. v. BMG Music Pub., 2008, in which it was accorded that more creative a work is the more protection it will require. Another case in point is Salinger v. Random House, 1987, where the court accorded that large portions of paraphrased unpublished letters written by J. D Salinger, were the backbone of the biography by the author and hence were declared not a fair use case.

d. Another case in point is Swatch Grp. Mgmt. Servs. Ltd. v. Bloomberg L.P, 2014, in which Bloomberg tapped the phone calls made by company executives to 132 analyst. These phone calls transcript was then published. It was considered a "fair use" case, because it was considered a news reporting worthy to be delivered to American investors and analysts.

3) Amount and substantiality of the use

a. Any usage, which is substantially similar to original work will weigh negatively for fair use doctrine.

b. A case in point is Love v. Kwitny, 1989, in which an author copied half of the manuscript and hence was considered not a fair use case.

c. Another case in point is Religious Technology Center v. Pagliarina, 1995, in which The Washington Post used three quotes from Church of Scientology text. The case was considered a "fair use" case as only a small portion of work was taken.

4) Impact on market

a. Any usage which results in the public benefit will weigh positively and usage, which impacts copyright owners economic interest, will weigh negatively for fair use doctrine.

b. A case in point is Fox News v. TVEYES, Inc. 2014, in which a TV clipping database was showing a portion of curated news clips for the keywords searched. The court dismissed it by highlighting that the impact on revenues will be too negligible and hence it was considered a fair use case.

Case closest to podcast translation usage

In the case of Twin Peaks v. Publications Intl, Ltd.1993, the company published a book which contained direct quotations from the television show. It also contained the detailed description of plots, characters, and setting. The court considered it as not a fair use case because the amount of material taken was substantial and also impacted the broadcasters potential revenue.

Conclusion

Fair use doctrine tests four factors for testing fair use case. The four factors are considered as part of the whole and do not have any individual weights. The four factors are the purpose of use, nature of work, the amount of use, and impact on the market. We could not find a case specific to Podcast translation usage, but the closest case related to the publishing of a book based on a television show is discussed.

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