Let us now revise our hypothetical case of the made-for-TV movie, Mark My Words, so that it illustrates what it seems courts would most likely regard as the creation of an infringing derivative work. Assume that the describer of the movie first tries but fails to get permission from the copyright owners of the movie for her project. Undaunted, she moves forward with her plan to digitally record the Sunday night airing of Mark My Words, to develop and record an audible description track, to mix the description track with the recording of the movie, and then to post the entire finished project on YouTube. Her new video has been edited to exclude the commercials and any reference to the broadcast network, one of the copyright owners, which aired the movie. When accessing the new video, visitors first must watch a three-minute introduction performed by the describer herself who is shown wearing business attire, seated in a plush office, with the name and logo of her business on a banner behind her. Visitors are explicitly invited to her website which promotes the describer's for-profit live and recorded description business. Is this a fair use of the movie?

Under current law, an otherwise infringing derivative work may be considered a fair use of the original copyrighted work when viewed in light of four factors, enumerated in section 107 of the Copyright Act: 1)"the purpose and character of the use, including whether such use is of a commercial nature or is for non-profit educational purposes;" 2) "the nature of the copyrighted work"; 3) "the amount and substantiality of portion used"; and 4) "the effect of the use upon the potential market for or value of the copyrighted work."17 U.S.C. §107. While courts tend to emphasize one or another of these factors in the context of a specific case given its unique facts, all four factors must be part of the analysis. Campbell v. Acuff-Rose Music Inc., 510 U.S. 569, 578 (1994). Over the course of time, however, the "character and purpose" and "market impact" factors have taken on particular significance, with the former having garnered considerable, and sometimes controversial, attention of late.

1. What TDC Characteristics or Purposes Are Most Significant in Assessing Its Fair Use of Copyrighted Audio Visual Works?

Let us first turn to an analysis of the "character and purpose" factor. The statute provides guidance in applying this factor by providing that the commercial or non-commercial nature of the use is an important consideration. However, an analysis of the first factor does not stop there. Following the Supreme Court's landmark ruling in Campbell v. Acuff-Rose Music Inc., 510 U.S. 569, (1994), courts now examine whether the use in question was transformative. In Campbell, the court wrestled with the question of whether a parody of the popular song "Oh, Pretty Woman," composed by Roy Orbison and William Dees infringed on the copyright in the song. 2 Live Crew, the rap music group that parodied the song, claimed that they had intended, "through comical lyrics, to satirize the original work...".Id, at 573. In grappling with the first fair use factor concerning the character and purpose of the use, and ultimately ruling that 2 Live Crew's parody was indeed a fair use, the court articulated the pivotal test at the heart of the first fair use factor: whether the work is "transformative." Id. at 579.

The Campbell court was heavily influenced by Judge Leval's seminal law review article on the subject of fair use, Judge Pierre N. Leval, Toward A Fair Use Standard, 103 Harv. L. Rev. 1105 (1990), in which he wrote that "the use must be of a character that serves the copyright objective of stimulating productive thought and public instruction without excessively diminishing the incentives for creativity." Consistent with this approach, the Campbell court held that a work is "transformative" if it "adds something new, with a further purpose or different character, altering the first with new expression, meaning or message..." 510 U.S. at 579.

A work is not transformative where the new work "merely supersede[s] the objects of the original creation .... " Id. (quoting Folsom v. Marsh, 9 F. Cas. 342, 348 (C.CD. Mass. 1841)). "[A] work composed primarily of an original, particularly its heart, with little added or changed, is more likely to be a merely superseding use, fulfilling demand for the original." Id at 587-88. "The first fair use factor calls for a careful evaluation whether the particular quotation is of the transformative type that advances knowledge and the progress of the arts or whether it merely repackages, free riding on another's creations." Leval, supra, at 1116.

In recognizing a song parody as a fair use, the Campbell court reasoned that parody "has an obvious claim to transformative value" because, "[l]ike less ostensibly humorous forms of criticism, it can provide social benefit by shedding light on an earlier work, and, in the process, creating a new one." Campbell, 510 U.S. at 579. Further, Campbell emphasized that the parodist loses its claim of transformation if "the commentary has no critical bearing on the substance or style of the original creation" and is used "merely to get attention or to avoid the drudgery in working up something fresh." Id. at 580.

Subsequent cases have elaborated on the meaning of "transformative", set out in Campbell. These cases have held that a new work can be transformative not only when it changes the original copyrighted work but also when it presents the copyrighted work in a new context, without necessarily altering the original copyrighted work.

In Blanch v. Koons, 467 F.3d 244, (2d. Cir. 2006), the court explained that if "the secondary use adds value to the original - if [copyrightable expression in the original work] is used as raw material, transformed in the creation of new information, new aesthetics, new insights and understandings - this is the very type of activity that the fair use doctrine intends to protect for the enrichment of society." Id. at 251-52 (emphasis added), quoting Castle Rock Entm 't Grp. v. Carol Publ'g, 150 F.3d 132, 142 (2d Cir. 1998) (brackets in original). In Blanch, Koons had incorporated a portion of a copyrighted photograph in creating a collage. The original photograph consisted of a woman's leg resting on a man's lap. Koons used the legs only, placed them with other images of women's legs taken from other photographs, presented the legs as dangling over brownies and other desserts with Niagara falls in the background. Koons explained that he was using the original photograph in his collage to comment on "commercial images ...in our consumer culture." The court held that "the use of a fashion photograph created for publication in a glossy American ‘lifestyle'" magazine - with changes of its colors, the background against which it is portrayed, the medium, the size of the objects pictured, the objects' details and, crucially, their entirely different purpose and meaning" meant that the new work transformed the original. Id. at 253.

Similarly, in Lennon v. Premise Media Corp., 556 F. Supp. 2d 310 (SD.N.Y. 2008), the court ruled that use of a portion of a work in order to criticize it amounted to transformative fair use. In that case, the producers of the movie "Expelled" used fifteen seconds from the John Lennon song, "Imagine." The portion of the song used idolized a world without religion and the producers used that portion, with images of Joseph Stalin, among others, to illustrate that a world without religion was realistically possible only in repressive or dictatorial regimes. The movie used the excerpt to criticize the naiveté of John Lennon's views and also illustrate that the view being expressed by others appearing in the movie were not original, but had already been articulated by Lennon. Id, at 323. The court held that the use of the song was transformative fair use even though it did not change the music or lyrics. The use was transformative because it "put the song to a different purpose, selected an excerpt containing the ideas [it] wished to critique, paired the music and lyrics with images that contrast with the song's utopian expression, and placed the excerpt in the context of a debate regarding the role of religion in public life." Id, at 324.

While the Blanch and Lennon cases involve at least some transformation of the original work, courts have held in other cases that even where a work has not itself been altered, or at least where the degree of alteration is far less than that in Blanch or Lennon, a follow on use could be a transformative fair use where the original work was presented in a new context. In Bill Graham Archives v. Dorling Kindersley Ltd., 448 F.3d 605, (2d Cir. 2006) the court held that the inclusion of copyrighted images of Grateful Dead posters in a 480-page cultural history of the band was transformative. The court noted that the defendant's purpose of enhancing the biographical information in the book was "separate and distinct from the original artistic and promotional purpose for which the images were created." Id, at 610. The images were embedded in a major new copyrightable work and were found to contribute to the informational message of the new material.

In Kelly v. Arriba Soft, 336 F. 3d 811, (9th Cir. 2003), the court held that a search engine that made available thumbnail images of entire photographs engaged in transformative fair use. The search engine had copied entire copyrighted photographs and displayed them as thumbnails in response to search queries. When a user clicked on a particular image, a larger image would appear "within the context of the search engine." Id, at 815.The court noted that although the defendant, Arriba Soft, made exact replications of the images, the lower resolution images "served an entirely different function than Kelly's original images." Id, at 818. As in Kelly, in Perfect 10, Inc. v. Amazon.com, Inc., 508 F.3d 1146, (9th Cir. 2007), the court held that a search engine that copied entire images and presented them as thumbnails in its search engine engaged in transformative fair use.

In A.V. v. iParadigm, LLC, 562 F. 3d 630 (4th Cir. 2009), the court held that a plagiarism detection service, that copied entire student articles into its database, per agreement with academic institutions, and used those papers to detect plagiarism, engaged in transformative fair use of the student papers. The court observed that "the use of a copyrighted work need not alter or augment the work to be transformative in nature. Rather, it can be transformative in function or purpose without altering or actually adding to the original work. Id, at 639, citing Perfect 10, Inc. v. Amazon.com, Inc., 508 F.3d 1146, 1165 (9th Cir. 2007).

In contrast to these cases, courts have held that where a new use satisfies the same purpose as the original, there is no transformative use. Thus, in Ringgold v. Black Entertainment Television, Inc., 126 F.3d 70, 78-79 (2d Cir. 1997), the court held that use of a copyrighted quilt as background décor in a television show without the copyright owner's permission, was not a transformative use. The television show used the quilt for its original, decorative purpose. Id, at 79. In Infinity Broad. Corp. v. Kirkwood, 150 F. 3d 104 (2d. Cir. 1998), the court held that a contemporaneous telephone transmission of radio broadcasts, that enabled remote listeners to listen to the radio broadcast, was not transformative. In Castle Rock Entm 't v. Carol Publ'g, 150 F.3d 132, (2d. Cir.1998), a trivia book that borrowed 643 fragments from the television show Seinfeld and used "original protectable expression" and close paraphrases from the show in creating trivia questions did not use the underlying work in a transformative manner. The court noted that the purpose of the trivia book was to "repackage Seinfeld to entertain Seinfeld viewers." Id, at 142. In Video Pipeline, Inc. v. Buena Vista Home Entertainment, Inc., 342 F. 3d 191, (3rd Cir. 2003)(cert. denied, Video pipeline, Inc. v. Buena Vista, 540 U.S. 1178), Video Pipeline copied two minute video clips from Disney movies and sold these clips as streams to online video retailers. The retailers permitted their customers to watch these clips to help them make purchasing decisions. The court observed that the clips shared the same purpose as trailers created by Disney, Disney's derivative works. Id, at 198. The court therefore found that the clips "supersede[d] the objectives of the derivatives." Id.

The whole question of the character and purpose of the otherwise infringing use of the copyrighted works and the application of the transformativeness test is, even at this writing, being hotly debated in the second circuit in the appeal of Authors Guild v. HathiTrust. See e.g. Pls-Appellants Final Form Br. and Special App., No. 12-4547-cv, (2d. Cir. Jul. 11, 2013), available at http://docs.justia.com/cases/federal/appellate-courts/ca2/12-4547/239/0.pdf?ts=1373599839. At issue in the case is the lawfulness of Google's digitization of millions of books in the collection of various libraries, provision of excerpts from these books in response to search queries, and full text access to the books for people with disabilities. Note here that while the Chafee amendment, discussed in the introduction to this paper, permits entities to make certain accessible format copies, that right does not extend to commercial entities, such as Google. In addition, Google's provision of digital access might not satisfy other requirements of the Chafee amendment. Because of these limitations in the Chafee amendment, the HathiTrust analysis proceeds under the fair use doctrine.

The district court in Authors' Guild v. Hathitrust, 2013 U.S. Dist. LEXIS 22370, (S.D.N.Y. 2013), had held that the digitization of millions of books made available to people with disabilities was a transformative use, even though each of the books' contents were reproduced in their entirety and without any content modification. Should the court of appeals affirm this holding, the court would be indicating that there need not be any kind of expressive transformation in the copyrighted works, merely the putting of the copyrighted works to a different purpose from that which the copyright owners intended.

In any event, what does all this mean for our hypothetical YouTube described video of Mark My Words? First, as part of the argument that such description is a fair use of the movie, the describer could certainly assert that her use is transformative in that she is adding new expressive content that comments on the original work. In addition, she could argue that by adding descriptions accessible to the disabled, she is presenting the copyrighted works in a different context and to a different audience than the audience intended by the copyright owner. Therefore, she is not "superseding the objects of the original" but rather "add[ing] something new, with a further purpose or different character, altering the first with new expression, meaning or message...," as the Campbell court put it. On the other hand, her opponents might very well argue that, in fact, she has not provided the kind of criticism and commentary that is at the heart of the first factor analysis. What she has done, they might assert, is to simply repackage the movie, to not add any truly new expression but to simply retell with words what is already expressed visually in the movie. Putting it another way, is description more like journalistic evaluative commentary or more like a faithful highlighting and summarizing of elements that are the creative expression of the movie's copyright owners? Furthermore, her use is not presenting the work in a new context because her description is serving the same purpose as the original, to entertain the audience, which in this case consists of visually impaired persons.

If the district judge in the HathiTrust case were to hear the lawsuit between the owners of Mark My Words and the describer, given the ruling in Hathitrust, he might very well conclude that the described movie posted to YouTube serves a functionally different purpose than the undescribed movie aired by the broadcast network. The described movie is intended for audiences with vision loss who cannot otherwise fully enjoy the movie. Such audiences would not enjoy the movie on the scheduled Sunday evening airing but would access YouTube thereafter at some random time of their own choosing. Anyone else accessing the YouTube video of the described movie would have to listen to the descriptions. These and other traits of the described movie might be held to constitute the kind of functionally different purpose that some courts find persuasive in demonstrating fair use. But does the described version of the movie supplant and fulfill demand for the original?

Unlike the HathiTrust case, however, where no expressive transformation seems to be in play, at least with respect to the issues concerning the making of digitized books available to people with disabilities, the described version of Mark My Words does involve expressive transformation to some extent; both blind and sighted audiences of the movie would each have dramatically different experiences watching the described and the undescribed versions. While coherent arguments can be made on both sides of the question of whether the addition of description to Mark My Words constitutes legally significant expressive transformative use, it does seem hard to believe that any court would fail to see the creative differences between the described and the undescribed work. While the case law appears to trend in favor of finding of transformative use, that it will be found transformative in the many situations involving TDC is not crystal clear.

One final consideration about the character and purpose of the use should be briefly examined. Ordinarily, commercial uses tend to weigh against a finding of fair use. In Harper & Row, Publishers, Inc. v. Nation Enterprises, 471 U.S. 539, (1985), the Supreme Court held that the act of the news magazine, The Nation, "scooping" portions of President Gerald Ford's unpublished memoirs, just weeks before its authorized publication in a rival magazine amounted to copyright infringement. The court held that the fair use defense did not apply to The Nation's actions. Evaluating the first fair use factor, the court noted that in lifting portions of the unpublished manuscript, The Nation had avoided having to bid for rights to publish an exclusive article based on the Ford memoirs and therefore acted out of a profit motive. The court noted that "[every] commercial use of copyrighted material is presumptively an unfair exploitation of the monopoly privilege that belongs to the owner of the copyright." Id, at 562 (citing Sony Corp. of America v. Universal City Studios, Inc., 464 U.S. 417, 451). Furthermore, the court explained that "[t]he crux of the profit/nonprofit distinction is not whether the sole motive of the use is monetary gain but whether the user stands to profit from exploitation of the copyrighted material without paying the customary price." Id. (citation omitted)

Following Harper & Row, subsequent courts have recognized that the mere fact of commercial use does not make the use unfair. See e.g. Campbell v. Acuff-Rose Music, 510 U.S. 569, 584 (1994). The Campbell court observed further that "the more transformative the new work, the less will be the significance of other factors, like commercialism, that may weigh against a finding of fair use." Id, at 579. In Blanch v. Koons, 467 F.3d 244, 253 (2d. Cir. 2006), the court observed "courts are more willing to find a secondary use fair when it produces a value that benefits the broader public interest. The greater the private economic rewards reaped by the secondary user (to the exclusion of broader public benefits), the more likely the first factor will favor the copyright holder and the less likely the use will be considered fair."

In any event, the commercial nature of the subsequent use is often tangled with considerations about the market harm to the copyright owner resulting from the use, the fourth factor, which we review below. In terms of our hypothetical described version of Mark My Words, however, the describer is not charging for her work but merely using her description of the movie to demonstrate her talent as a describer and, of course, to provide greater access to the movie by audiences who are blind or visually impaired. In our hypothetical, the describer is clearly promoting her business, but she is making the described version of Mark My Words available as a public service. If the described movie were only available from the describer's website, not from YouTube, and visitors were expected to pay for access to it, this clearly commercial purpose would not, in itself apart from the rest of the fair use analysis, invalidate her use of the movie. The heart of the question posed by the first fair use factor is whether her use is transformative, and whether the transformativeness is sufficiently high to overcome any negative impact that the commerciality of the use may have. Yet, even if a court might agree that description is transformative, this is but one of the four fair use factors to consider.

2. How Might the Nature of the Copyrighted Audio Visual Work Impact TDC's Fair Use?

In addition to assessing the character and purpose of the use of copyrighted works, copyright law directs courts to look to the nature of the copyrighted work used to determine whether its use by someone other than the copyright owner without permission is fair. Generally, the more fact-oriented a work is, the more courts may view its subsequent use as fair. Harper & Row, Publishers, Inc. v. Nation Enterprises, 471 U.S. 539, 563 (1985) ("The law generally recognizes a greater need to disseminate factual works than works of fiction or fantasy"); See Feist publ'ns, Inc. v. Rural Tel. Serv. Co., 499 U.S. 340 (1991). Similarly, if the copyrighted work is of a particularly creative nature, the subsequent use is subjected to more rigorous scrutiny. See e.g. Stewart v. Abend, 495 U.S. 207, 237 (1990) ("[a] use is less likely to be deemed fair when the copyrighted work is a creative product." (citation omitted).

In the case of Mark My Words, a made-for-TV dramatization of the life story of a real person, there is clear exercise of creative judgment in play. But let us assume for the moment that Mark My Words is not a dramatized biographical movie but is written more like a documentary. In such instances, the informative or newsworthy nature of the work may lead more courts to see its subsequent description as a fair use. Let us hypothesize that the describer of Mark My Words also regularly describes a weekly TV show for children called Writing Right with Rashmi, wherein the describer relates key visual elements of each week's show, such as the spelling of words that appear on the screen, interactions that the show's host, Rashmi, has with her animated friends, and the like. The educational nature of Writing Right with Rashmi, though clearly a creative TV program, may lead courts to conclude that the program's use to make its educational content more accessible to children with vision loss is precisely the kind of subsequent use that the copyright law should be encouraging.

In Cambridge Univ. Press v. Becker, 863 F. Supp. 2D 1190, (S.D.N.Y), the court wrestled with similar questions about educational works and how the second fair use factor applied to them. The works at issue in that case were textbooks and supplementary information used in social sciences and language classes. Professors at Georgia State University had facilitated copying of portions of these works and made them available to students electronically. They claimed that their actions amounted to fair use. In applying the second fair use factor to evaluate this claim, the court noted, that the books at issue in this case were "intended to inform and educate." Id, at 1225. Yet they were also of an "evaluative nature, giving the authors' perspectives and opinions." Id, at 1226. Thus, arguments could be made both for a finding of fair use and against. But the court noted that, on balance, because the works involved "criticism and comment" section 107 recognized that they "deserved more public exposure." Id. The court concluded that the second fair use factor favored the professors.

The analysis of the nature of the copyrighted work to be described is particularly of interest to describers and to people with vision loss alike in that, while there is strong consumer interest in popular movies and television shows, interest in the description of educational materials for students who are blind or visually impaired is vital and touches a very real nerve. If a classroom teacher uses a video of the movie Mark My Words in her class to teach her students about what life is like living successfully with a significant disability, should not the student who is blind in her class be able to experience the movie's message on terms of equality with his classmates? In the event that an unauthorized described version of Mark My Words is created for classroom use, courts may very well look to both the nature of the film itself and the fact that a school system has purchased the biographical movie to achieve educational purposes. In such an instance, the film is not simply the kind of creative entertainment that courts tend not to allow for secondary unauthorized uses. Courts might very well conclude that the film portrays an important, socially edifying, message that serves an informative or even educational purpose, meaning that its adaptation by a third party may indeed be a fair use.

3. To What Extent May the Quantity or Substance of the Copyrighted Work Used Impact TDC's Fair Use?

The third fair use factor concerns "the amount and substantiality of the portion used in relation to the copyrighted work as a whole." 17 U.S.C. §107 (3). In general terms, the more the copyrighted work is used, the less likely it is to be a fair use. However, this factor is generally evaluated in view of the other statutory factors. Thus, in Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 586 (1994), the Supreme Court noted that "the extent of the ...copying must be consistent" with and necessary to further the purpose and character of the use. Where the taking exceeds that purpose, courts are likely to hold that the third factor was not satisfied. Thus, in Castle Rock Entm't v. Carol Publ'g, 150 F.3d 132, 144 (2d Cir. 1998), the court noted that the trivia quiz book, that posed 643 trivia questions about the TV show Seinfeld to "make a rather straightforward point" had used too much of the show's original content thereby suggesting a purpose to entertain the Seinfeld audience rather than offer a critique of the show.

In particular, where the material used is essentially the heart of the copyrighted work, fair use may not be recognized. In Harper & Row, Publrs. v. Nation Enterprises, 471 U.S. 539, 565 (1985), the Supreme Court found that a political magazine's taking of an "insubstantial portion" from President Ford's memoir manuscript did not satisfy the third factor because the infringer took the "heart of the book." The purpose of the verbatim taking was to show "'the absolute certainty with which [Ford] expressed himself' or show that 'this comes from the President.'" The court noted that the infringer had taken the original "precisely because they 'embodied [the author's] distinctive expression. Id.

However, courts have not shied away from recognizing fair use when the entirety of a copyrighted work is used. In the seminal case, Sony Corp. of Am. v. Universal City Studios, 464 U.S. 417, 449-450 (1984), the Supreme Court held that unauthorized copying of entire television programs broadcast free over-the-air for the purpose of later viewing (time-shifting) "does not have the ordinary effect of militating against a finding of fair use" because "time-shifting merely enables a viewer to see such a work which he had been invited to witness in its entirely free of charge."

In Kelly v. Arriba Soft, 336 F. 3d 811, (9th Cir. 2003), the court held that copying entire images for display in a search engine did not militate against a finding of fair use because the copying was justified by the purpose. Rather this factor was neutral and favored neither party. The search engine had to copy the entire image to permit users to "recognize the image and decide whether to pursue more information about the image." Id, at 821. The court followed this same reasoning in Perfect 10, Inc. v. Amazon.com, Inc., 508 F.3d 1146, 1168 (9th Cir. 2007), and held that the search engine's copying of entire images neither favored a finding for or against fair use. In A.V. v. iParadigm, LLC, 562 F. 3d 630, (4th cir. 2009), the court analyzed the portion used in light of the purpose of the use. As we have discussed before, in this case, a plagiarism detection service had copied entire copies of student articles for use in its service. The court agreed with the district court that the extent of the copying was "limited in purpose and scope" to "comparison purpose only." Therefore, this factor favored neither party. Id, at 642.

Applying these cases to our Mark My Words hypothetical, a court weighing the fair use of the movie by the describer would assess whether using the entire movie was necessary to the purpose for which the describer made her video. It would seem difficult for a court not to conclude that her use of the entire movie was not in fact necessary to provide access to the movie for people with vision loss. What point, a court might ask, would there be in describing a third of the film or only a few key scenes? The describer's fair use case would be even stronger, however, if we altered our hypothetical so that the describer did not copy the movie at all but merely prepared a description-only audio track to be played or sequenced with a YouTube video of the movie posted by the broadcast network. In such circumstances, none of the copyrighted movie would be considered taken per se. Arguably, advocates could successfully contend that providing description in such circumstances results in an original work of authorship by the describer and is not an infringing derivative work in the first place, and we have discussed those dynamics earlier in this paper. However, in wrestling with this third fair use factor concerning the amount and significance of the taking, it is important to know that the mere fact that description of Mark My Words, or of any audiovisual artifact for that matter, involves the use of the entire copyrighted work does not necessarily mean that such use is not fair. Like each of the four factors, this factor is considered in light of them all.

4. What Are the Market Factors and Related Considerations Implied by TDC?

Let us now turn to the fourth fair use factor concerning market harm and the one that rivals the first factor for priority in significance in the consideration of so many courts. In doing so, let us yet again alter our Mark My Words hypothetical. Assume that the movie is actually a major motion picture first released in theaters and then released on DVD and through online distribution channels. The describer then, in one way or another, captures a digital recording of the movie, adds her description to it, and then offers her described version of the movie for sale both on DVD and via her own website. Is this seemingly obvious exploitation for commercial gain of another's copyrighted work conceivably a fair use of that copyrighted work?

Let us assume for discussion that the copyright owner has not provided description for the movie, neither in theaters, nor on DVD, nor via online distribution mechanisms. Is the describer's reproduction, addition of description, and sale of her described version of the movie a fair use? In evaluating the market impact of an unauthorized use of a copyrighted work, courts are particularly concerned with identifying actual or predictable harm to the copyright owner, not mere theoretical possibilities. See e.g. American Geophysical Union v. Texaco Inc., 60 F.3d 913, (2d. Cir. 1994) (holding that courts look to "traditional, reasonable, or likely to be developed markets" when examining the fourth factor), quoted with approval in Bill Graham v. Dorling Kindersley, 448 F.3d at 614 (further noting that "copyright holder must have a right to copyright revenues before finding that a failure to pay a license fee equals market harm", Id, at 605 (internal citation omitted) and that the fourth factor disfavors a finding of fair use only when the market is impaired because the copied material "serves the consumer as a substitute" to the original. Id, at 614.) Additionally, the mere fact that royalties may be potentially impacted is not, all other things being equal, enough in itself to demonstrate harmful market impact of the use. See Id (refusing to find a negative impact on the market merely because the secondary user, Dorling Kindersley, failed to obtain a license from the copyright owner and further observing that "were a court automatically to conclude in every case that potential licensing revenues were impermissibly impaired simply because the secondary user did not pay a fee for the right to engage in the use, the fourth factor would always favor the copyright holder")(internal citation omitted).

It may be useful at this point to review how various courts have wrestled with the notion of market harm and reached different conclusions about the fairness of secondary unauthorized uses. A review of these cases indicates a trend of finding no market harm or little market harm in the following three scenarios: 1. when the secondary use is transformative or when it does not usurp the market for the original; 2. when the secondary use does not interfere with a market for derivative works that the rights holder might develop or license; and 3) when there are no reasonably priced alternatives to the work the secondary user is offering.

The Supreme Court's decision in Campbell v. Acuff-Rose Music Inc., 510 U.S. 569, 578 &591 (1994), set the precedent for the first trend – a finding of no market harm where the secondary use is transformative or does not usurp the market for the original. In that case the Supreme Court found that a rap parody of Roy Orbison's song, "Oh, Pretty Woman", was unlikely to harm the market for the original work. The court noted that "when ….. the second use is transformative, market substitution is at least less certain, and market harm may not be so readily inferred. Indeed, as to parody pure and simple, it is more likely that the new work will not affect the market for the original in a way cognizable under [the fourth] factor." Following the Supreme Court's holding in Campbell, many lower courts have found a lack of market harm in cases involving transformative uses of copyrighted works. In Blanch v. Koons, 467 F. 3d 244 (2d. Cir. 2006), the court found that there was no market harm where an artist appropriated portions of a photograph and incorporated it in a collage that critiqued consumer culture. Similarly, in Bill Graham Archives v. Dorling Kindersley Ltd., 448 F.3d. 605, 615 (2d. Cir. 2006), the court found no market harm to copyright interest in concert posters of the band Grateful Dead, when those posters were included in a 480-page cultural history of the band. Recall from our discussion of the first fair use factor above that the court found that these posters were used in a transformative manner. Following that finding, the court found that a failure to license a transformative use does not negatively impact the market. The court further noted that a copyright holder cannot prevent others from entering fair use markets merely "by developing or licensing a market for parody, news reporting, educational or other transformative uses of its own creative work." Id

In contrast, where secondary uses have not transformed the original, courts have found market harm. In Ringgold v. Black Entertainment Television, Inc., 126 F.3d 70, 81 (2d. Cir. 1997), the court held that a television studio's use of a quilt as set décor without the artist's permission exploited the quilt "without paying the customary price." The artist had provided evidence that there was a market for licensing her quilt and that she had, in fact, been approached by television studios seeking permission to display her quilt. Id. Similarly, in Infinity Broad. Corp. v. Kirkwood, 150 F. 3d 104 (2d. Cir. 1998), the court held that Kirkwood's retransmission of Infinity's broadcast over telephone lines caused market harm. The court noted that Kirkwood offered a substitute to Infinity's service, thereby usurping the market for the original. This was true even if Infinity was not currently offering telephone retransmissions itself because it could potentially offer this service in the future.

Subsequent cases starting with Dorling Kindersley developed this thinking further and explained that the fourth factor focused not only on the market for the original work but also on the market for derivative works based on the original – the second trend we mentioned above. Thus, in Dorling Kindersley the court examined whether secondary use of concert promotion posters of the Grateful Dead in a biography of the band negatively impacted the copyright owner's "potential to develop a derivative market" for licensing the posters. Because the use in that case was transformative, the court found that the copyright owner could not prevent the use in question.

In Lennon v. Premise Media Corp., 556 F. Supp. 2d 310, (S.D.N.Y. 2008), the court cited Dorling Kindersley with approval and noted that the relevant question was whether the secondary use usurped the market for original or potential derivative works based on the original. The court noted that because the use in this case was transformative, it was less likely to suffer licensing harm. Following this reasoning, the court held that use of fifteen seconds of John Lennon's song, "Imagine," in a manner that criticized the song was a transformative use that did not harm the market for the original song. Id, at 326.

In contrast to Dorling Kindersley and Lennon, courts in Warner Bros. Enm't Inc. v. RDR Books, 575 F. Supp. 2d. 513, (S.D.N.Y. 2008) and Castle Rock Entm 't v. Carol Publ'g, 150 F.3d 132, (2d Cir. 1998) found that the secondary users had borrowed too much of the original. The secondary uses were thus not transformative and impacted the market for derivative works. In Warner Bros., the court ruled that the defendant had borrowed too much original expression and therefore the secondary work was not transformative. Yet, the secondary work, the Harry Potter Lexicon, would interfere with sales of a similar lexicon, created by the author. In Castle Rock, the court ruled that the secondary work served the same purpose as the original – to entertain the Seinfeld audience. While the owners of copyright in Seinfeld had not shown any interest in developing or licensing creation of similar trivia books, their creative decision not to saturate this derivative market had to be respected. Id, at 146.

In Cambridge Univ. Press v. Becker, 863 F. Supp. 2d 1190, 1238-1239, (N.D. Ga. 2011), and in Authors' Guild v. Hathitrust, 902 F. Supp. 2d 445, (S.D.N.Y. 2012) courts were dealing with the third trend mentioned above - lack of reasonably priced alternatives prompting the unauthorized use. In Cambridge Univ. Press, several professors in Georgia State University had made available to students enrolled in their classes, excerpts from various educational books. The court held that many of these uses were fair uses because licenses for the excerpts at issue were not easily accessible at reasonable prices. The court noted that "a particular unauthorized use should be considered ‘more fair' when there is no ready market or means to pay for the use, while such an unauthorized use should be considered ‘less fair' when there is a ready market or means to pay for the use." Id, at 1237.The court noted that because digital licenses for the excerpts in question were not available, the defendant's use did not harm the plaintiff's actual or potential market. Similar reasoning animated the court in Authors' Guild v. Hathitrust, 902 F. Supp. 2d 445, (S.D.N.Y. 2012). The court held that a library project for mass digitization of books that made full text copies of those books available in accessible formats to the blind was a transformative use. Furthermore, the court noted that the "print-disabled were a tiny minority of the population and the development of a market to provide them with access on the scale of the [mass digitization project] was impossible to fathom." Id, at, 464.

To summarize, then, courts are both very sensitive to the commercial impact that a secondary use has on the copyright owner's interests, but those interests, whether actual or potential, must be clearly identifiable, not merely hypothetical, and the markets for the exploitation of those interests must be probable, not merely conceivable. Moreover, as noted above, a copyright owner cannot, as it were, preempt secondary transformative uses of a copyrighted work by entering or licensing another to enter into such transformative markets. Finally, courts are more likely to find fair uses when reasonably priced alternatives to the secondary work are not available. But what of it? In our hypothetical sale of described versions of Mark My Words, the movie's owners would certainly argue that the wholesale copying of the original film and subsequent repackaging with description onto DVD is the essence of copyright infringement having an unquestionable direct impact on the actual market for their DVD version of the film.

And yet, let us assume for the sake of argument that the describer's DVD of the movie does not merely allow viewers to select the description track, but, rather, the viewer has no option but to hear the descriptions. Putting it another way, just as captioning can be either open or closed, seen by all viewers or seen only by those who select it respectively, DVDs that are in fact sold today allow users to turn the descriptions on and off. What if the describer of Mark My Words only distributes a DVD or online version of the movie which offers, so to speak, open description? In such a case, any purchaser of her DVD or online version of the movie will be subjected to the descriptions of the film whether they want them or not. Moreover, let us assume that the describer of Mark My Words distributes her open-described version of the movie in a way that clearly indicates that her work product is intended for viewers who are blind or visually impaired. It would seem very difficult for the original copyright owner to claim, under such circumstances, that an open-described DVD or online video of the movie directly marketed to an audience not targeted by the copyright owner, people who are blind or visually impaired, would not be a fair use. As the courts have held, key to understanding whether market harm is in play is the question of whether the secondary use supplants the demand or the market for the original.

To take the question of market harm to an amusing but absurd extreme, suppose that someone copies the popular motion picture My Big Fat Greek Wedding and redistributes it, without permission, adapting the film with dubbed in voice-over actors speaking in Turkish. True, translations of copyrighted works are precisely the kind of derivative works that fall within the copyright owner's exclusive rights. See 17 U.S.C. 101 (in defining "derivative work" the statute uses a translation as an example of a derivative work). However, the fair use doctrine is specifically intended to foster transformative expressive uses of a copyrighted work that would otherwise be considered infringement. Let us assume that there is no authorized version of My Big Fat Greek Wedding available with Turkish voice-overs distributed in the United States. The unauthorized Turkish version of the film is intended to satisfy a niche market of Turkish speaking U.S. viewers, which the film's owner has not exploited and is likely not to exploit. In our opinion, while the fair use argument here might be plausible, we think the word-for-word rendering of the film into another language is too close to the exclusive right to translate one's own work for courts to be sympathetic. In the case of description, however, a narrator selects and comments on the most interesting or significant details depicted on screen apart from dialogue. Description is hardly like translation. However, not entirely unlike the amusing Turkish voice-over hypothetical, the market for description is quite limited indeed. True, if the describer of Mark My Words copied the film and distributed a DVD or online version to the public generally, and the description track could remain hidden and unheard, unselected by a given viewer, then surely the copyright owner could claim that the describer's work product could supplant demand for the original. Surely, however, an open-described audiovisual work, or a description track merely sequenced with an audiovisual work, should not be viewed by courts as having the requisite market impact that would invalidate fair use.

All farfetched hypotheticals aside, the truth is that it should be very hard for a copyright owner to claim market harm from an unauthorized described version of a motion picture or any other audiovisual work, particularly if there were some mechanism in place to remunerate the copyright owner for each copy of the described version sold or otherwise accessed. But even without such a mechanism, it seems unlikely that most courts would recognize a "traditional, reasonable, or likely to be developed market" for described motion pictures, television, educational multimedia, videos posted via online social networks, and the like. Indeed, in the context of an infringement law suit, describers and advocates for third-party video described content (TDC) could recount the decades-long and ongoing struggle to put more described content into the hands of people with vision loss.

In so many ways, this paper is yet one more example of the lack of a market for description; if copyright owners themselves recognized a market for described versions of their works, the vision loss community would not be developing and encouraging new and innovative means for third parties to undertake the work of description, trying to fill the void created by the copyright owner's inaction. The unvarnished reality is that copyright owners have loudly and consistently argued that a viable market for description does not exist and therefore they should not be expected to provide it themselves.

Furthermore, they have actively resisted accessibility requirements arguing that such requirements would be too burdensome or would violate their first amendment rights. For instance, when the Federal Communications Commission (FCC) proposed closed captioning television programming, the Motion Picture Association of America (MPAA) argued that having to caption a majority of their library would pose "practical, technical, and economic impediments" given the "sheer volume" of their library. Comments of MPAA, Closed Captioning and Video Description, FCC Docket No. 95-176, at iii (Feb. 28, 1997). Furthermore, they argued that having to caption their entire library of programming would be so burdensome that it might outweigh the benefits of providing the programming to the public. Id. at 9. Similarly, the National Association of Broadcasters has complained to the FCC about "economic burdens" and "substantial costs" involved in creating audio descriptions. See Comments of NAB, Video Description: Implementation of the Twenty-First Century Communications and Video Accessibility Act 2010, MB Docket No. 11-43, (April 28, 2011), available at https://www.fcc.gov/consumers/guides/21st-century-communications-and-video-accessibility-act-cvaa.

The Cable News Network, Inc. ("CNN") has argued that its decision not to caption its copyright protected, IP-delivered video programming furthers its editorial discretion and free speech rights. Greater LA Agency on Deafness v. Cable News Network, 862 F. Supp. 2d 1021, 1025-26 (N.D. Cal. 2012). Similarly, in recent comments with the FCC, the MPAA has urged a restrained approach to close captioning mandates for Internet-Protocol delivered video programming, suggesting that requiring copyright holders to caption their programming might violate their free speech rights.

In any event, the question of whether the describer of Mark My Words has created a work that somehow results in market harm to the copyright owner hangs on a critical element of our hypothetical. We have assumed for purposes of this discussion that the describer is actually incorporating the entirety of the original movie in her project. Let us rather assume now that the describer of Mark My Words simply creates an audible recording of some kind containing nothing but her own voice reading a script of descriptions for the movie and, through the use of some web-based or even mobile software tool, allows users with vision loss to trigger its beginning so as to properly sequence it with the movie which they would access in the same way that sighted viewers would access the movie. In such circumstances, though the user with vision loss has an experience of watching a new version of the movie that includes description, no such new version per se is created. More to the point, there is no market impact at all because the viewer with vision loss obtains access to the movie in the same manner, and at the same cost, as other users. On the contrary, because the user with vision loss has likely purchased or rented the original, the market for the work actually increases, however slight the increase may be. Certainly this is a fair use of the movie, if it is an infringing derivative work at all.

Finally, so far in this paper, we have not taken up the question of whether distribution of the describer's version of Mark My Words to an exclusive group of users would impact a court's analysis in the describer's favor. Recall that the Chafee Amendment requires that the specialized formats created pursuant to that limitation on the rights of copyright owners must be "exclusively for use" by the beneficiary class, people who are blind or otherwise have print disabilities. 17 U.S.C. §121(a). Many have interpreted this requirement to mean that exclusive use is to be managed through an elaborate system of eligibility documentation and even the implementation of technological protection measures. Some have gone so far as to claim that the specialized formats themselves must be structurally engineered in such a way as to limit their usability by anyone other than the beneficiary class. The starkest example of this is the obsolete method of recording talking books on cassette tape using a four-track method of recording that forces the listener to acquire a special four-track playback device. Consumer advocates have alternatively argued that the exclusive use requirement is nothing more than a simple distribution restriction that is satisfied when a member of the beneficiary class receives braille, audio, or digital text material from a Chafee-authorized entity. After all, they argue, braille is not in any way a format that is either used exclusively by people who are blind nor has ever been intended to be such. Braille is a system of tactile communication that renders text characters in a format that both blind and sighted persons can use; indeed, sighted teachers have been teaching blind students, and sighted family members and friends have been communicating with their blind loved ones and neighbors using braille for more than 150 years. So no, a Chafee specialized format need not be one that is somehow rigged to only work in the hands of beneficiaries.

But let us assume that the describer of Mark My Words offers from her website a downloadable audiovisual file containing both the full original movie and her accompanying descriptions embedded in it, and she asks purchasers to self-certify their vision loss by actuating a checkbox on her website; only those who check the box are permitted to download the file which itself can be played on any commonly used software media player. Courts have recognized that distribution to a carefully circumscribed pool of users does not result in the market harm that the fourth fair use factor is intended to guard against. See Cambridge Univ. Press .v Becker, 863 F. Supp. 2d 1190, 1238 (N.D. Ga. 2011) (noting that provision of excerpts from copyrighted works to students enrolled in a course were "carefully monitored" and this reduced the possibility that the defendant's use would result in substituting the market for the plaintiff's work). The question that a court would need to wrestle with is whether the describer has indeed limited her distribution in a meaningful way given that she simply asks purchasers to self-identify. In principle, however, if a described version of Mark My Words is distributed to a clearly defined and relatively insignificantly sized class, the copyright owners would have a harder time demonstrating market harm.