An NBC affiliate in Rochester, N.Y., failed to kill a copyright infringement lawsuit accusing it of unfairly sampling a university student journalist’s interviews of first-time voters.

Photographer Boris Shirman accused WHEC-TV LLC of infringing his 2016 video showing pictures of high school students matched with audio from interviews. The U.S. District Court for the Western District of New York denied the station’s bid to dismiss the case because it couldn’t conclude as a matter of law that fair use factors weighed in its favor.

The May 17 ruling showed that using even limited parts of a video in a news broadcast doesn’t necessarily constitute fair use. The court also said that while WHEC made a “plausible” argument that its purpose for using the interviews differed from Shirman’s, that was “not the only reasonable inference.” One could argue both had the purpose of relaying students’ perspectives on the election, which hurts WHEC’s fair use defense, the court said.

The court did grant WHEC’s bid to dismiss Shirman’s claims for attorneys’ fees because he registered the copyright on his three-minute video after WHEC allegedly infringed. Statutory damages and attorneys’ fees aren’t available when registration follows infringement, limiting Shirman’s potential award.

WHEC aired a segment on Nov. 7, 2016, the day before the election, that included eight seconds of Sherman’s video before an anchor speaks over the audio for another 15 seconds of it. Shirman said the network, which credited his work, wasn’t authorized to use it.

Shirman, a Rochester Institute of Technology photojournalism student, is a professional photographer who sells his photos and videos to online and print media, according to his July 2018 complaint. Public radio station WXXI News published Shirman’s video to YouTube, where the station allegedly accessed it.

Fair Use Analysis

The nature of WHEC’s use of Shirman’s video played a prominent role in the court’s decision to let the lawsuit proceed. WHEC argued that it transformed the video by crafting its segment to focus on the issues that mattered to students, while the original primarily focused on students’ feelings heading into the election.

U.S. District Judge Frank P. Geraci Jr. saw more overlap than that, and said both arguably had the purpose of reporting on students’ election preparation and opinions about issues. He criticized WHEC’s argument that its segment had a secondary purpose of covering Shirman’s creation, because simply giving Shirman credit didn’t suggest an alternative purpose for a segment otherwise entirely focused on the interviews.

Geraci said he didn’t have to weigh the fair use factors regarding the nature of Shirman’s work or how substantial WHEC’s use of it was at this stage. The station made a “persuasive claim” that Shirman’s video largely “reflects newsworthy factual material,” he said. But the broadcast also relied almost entirely on Shirman’s work, suggesting a fair-use factor that favored Shirman, Geraci said.

Another fair-use factor, the effect Shirman’s work had on the market, involved factual questions not suited for the early stage of litigation, Geraci said.

Liebowitz Law Firm PLLC represented Shirman. Ward Greenberg Heller & Reidy LLP represent WHEC.

The case is Shirman v. WHEC-TV, LLC, 2019 BL 180756, W.D.N.Y., No. 18-6508, 5/17/19