In an opinion last week, Judge Koeltl denied a motion to dismiss brought by NBC and Peacock, which are accused of infringing the plaintiff’s copyright to two videos in connection with a documentary about Rudy Giuliani’s infamous press conference in front of the Four Seasons Total Landscaping business—widely speculated to have been intended to take place at the Four Seasons Hotel. One video was of the press conference itself, and the other depicted confrontations between supporters of Joe Biden and supporters of Donald Trump.

Judge Koeltl rejected the defendants’ argument that using the videos as part of a documentary “forgives all copying” as fair use:

[T]he defendants argue that, because they used the plaintiff’s videos in a “documentary,” the defendants’ use  . . .  is entitled to the presumption that the use of the copyrighted material is fair. The defendants wield the term “documentary” as though it were a talisman that forgives all copying. However, this is not a case where the documentary provided commentary about the videos in question ….

Defendants lose the presumption of transformative use usually afforded to commentary or news stories where, as here, the use is merely to provide an illustrative aid depicting a person or event described in the work. The defendants could have substituted videos taken by others at the news conference. Copying the plaintiff’s videos was therefore not reasonably necessary to achieve the defendants’ new purpose. They simply used the plaintiff’s videos without paying for their use to illustrate the subject matter of the documentaries. If this were permitted, it would undercut the market for news photographers and videographers.