COPYRIGHTS - FAIR USE, Swatch v. Bloomberg

Swatch Grp. Mgmt. Servs. Ltd. v. Bloomberg L.P., 12-2412-CV, 2014 WL 274407 (2d Cir. Jan. 27, 2014)

At Swatch Group's request, an audio conferencing vendor recorded the entire earnings call as it was in progress. 
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The entire call lasted 132 minutes; Swatch Group executives spoke for approximately 106 of those minutes.
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Swatch filed an application with the U.S. Copyright Office to register a copyright in a sound recording of the earnings call. The Copyright Office and Swatch then exchanged a series of emails over the scope of the claimed copyright. After Swatch narrowed the copyright to cover only the statements made by Swatch Group executives, and not the statements made by the operator or the questions posed by the analysts, the Copyright Office issued a registration on April 27, 2011.
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[Regarding Purpose and Character of the Use:]

We merely hold that where a financial research service obtains and disseminates important financial information about a foreign company in order to make that information available to American investors and analysts, that purpose supports a finding of fair use.

{Nature]

There can be no doubt as to the manifestly factual character of the earnings call in this case.

[Amount] 

Bloomberg's use of the entire recording was reasonable in light of its purpose of disseminating important financial information to American investors and analysts. 

[Effect upon the Market] 

Here, the possibility of receiving licensing royalties played no role in stimulating the creation of the earnings call. Indeed, Swatch affirmatively argues that it does not know whether there is a potential market for this kind of recording, and cannot know without obtaining discovery from Bloomberg. The context of the earnings call, moreover, makes perfectly plain that its purpose was to enable Swatch Group executives to disseminate financial information about the company in a way that they believed would be advantageous. It is that calculation of advantageousness, and not the possibility of receiving royalties, that induces Swatch Group and other similarly situated companies to hold earnings calls.