readded.
edit: responses
>Re: #1, GN's work while commercial is an educational investigative journalism / documentary piece which are well established users of Free Use protection. GN's use is absolutely transformative.
I'm not going to argue too hard over whether taking a 1 minute clip for a 3 hr video counts as "transformative" because this is getting enough into the legal weeds that you'd want to start citing precedents, rather than having two armchair lawyers duking it out with random arguments.
That said, "investigative journalism / documentary piece" angle seems weak. It's not more "educational" than any other news organization (eg. Bloomberg or The New York Times), but apparently they still go out to record speeches, even though they can supposedly piggy back off another organization's footage under fair use.
>#4: Bloomberg would have to prove a financial loss to have standing. That would mean that GN must have no other option than to use Bloomberg's clip, and pay the license, which I don't think would fly. GN would have just produced the segment differently.
Right, but the purpose of DMCA is to take down infringing works, not to award damages. Whether they have losses or not is irrelevant. Moreover the implied argument of "it might be copyright infringement but Bloomberg isn't losing any money so they shouldn't be able to do takedowns" seems... questionable.
A practical way to think about it is this:
What is the new use for? Courts look first at whether the secondary use serves a different purpose from the original, not just whether it looks different. Uses for criticism, commentary, parody, scholarship, search/indexing, or other new functions often have a stronger transformative argument.
Is there new expression, meaning, or message? That still matters, but after Warhol, a claimed new meaning by itself is usually not enough, especially when the secondary use is being exploited in a similar commercial market as the original. The Court emphasized that the inquiry is tied to the specific use at issue and whether that use has a distinct purpose.
Does it substitute for the original in the same market? Even if the new work has some new meaning, it looks less transformative if it is serving basically the same licensing or audience function as the original. That overlaps with factor 4 as well.
How much was taken, and was that amount justified by the new purpose? A use is more defensible when it takes only what is reasonably needed for the transformative aim. In parody, for example, some copying may be necessary to “conjure up” the original, but not more than needed.
All of which I think can fairly be evaluated in GN's favor. Though as you point out, the lawyers are paid to argue each point.