12-2412-cv (L)

Swatch Group v. Bloomberg

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

_______________

 August Term, 2013

(Argued: October 21, 2013 Decided: January 27, 2014)

Docket Nos. 12-2412-cv, 12-2645-cv

_______________

THE SWATCH GROUP MANAGEMENT SERVICES LTD.,

Plaintiff-Counter-Defendant-Appellant-Cross-Appellee,

—v.—

BLOOMBERG L.P.,

Defendant-Counter-Claimant-Appellee-Cross-Appellant.

_______________

B e f o r e :

KATZMANN, Chief Judge, KEARSE, and WESLEY, Circuit Judges.

_______________

Appeal and cross-appeal from a judgment of the United States District 

Court for the Southern District of New York (Hellerstein, J.), granting summary 
2

judgment to the defendant as to the plaintiff’s claim of copyright infringement on 

the ground that the defendant had engaged in fair use. The plaintiff claims that 

the defendant, a financial news and data reporting service, infringed the 

plaintiff’s copyright in a sound recording of a foreign public company’s earnings 

call with invited investment analysts by obtaining a copy of the recording 

without authorization and making it available to the defendant’s paying 

subscribers. We hold, upon consideration of the relevant factors, see 17 U.S.C. 

§ 107, that the defendant’s use qualifies as fair use. We further grant the 

plaintiff’s motion to dismiss the defendant’s cross-appeal because the defendant 

lacks appellate standing and we lack appellate jurisdiction.

For the reasons stated below, the defendant’s cross-appeal is DISMISSED, 

and the judgment of the district court is AFFIRMED.

_______________

JOSHUA PAUL (Jess M. Collen, Kristen Mogavero, on the brief),

COLLEN IP, Ossining, NY, for 

Plaintiff-Counter-Defendant-Appellant-Cross-Appellee.

JOHN M. DIMATTEO (Thomas H. Golden, Amina Jafri, on the brief), 

Willkie Farr & Gallagher LLP, New York, NY, for 

Defendant-Counter-Claimant-Appellee-Cross-Appellant.

_______________

KATZMANN, Chief Judge:

This case concerns the scope of copyright protection afforded to a sound 

recording of a conference call convened by The Swatch Group Ltd. (“Swatch 

Group”), a foreign public company, to discuss the company’s recently released 

earnings report with invited investment analysts. In particular, we must 
3

determine whether Defendant-Appellee Bloomberg L.P. (“Bloomberg”), a 

financial news and data reporting service that obtained a copy of that sound 

recording without authorization and disseminated it to paying subscribers, may 

avoid liability for copyright infringement based on the affirmative defense of 

“fair use.” 17 U.S.C. § 107. We also must determine whether we have jurisdiction 

to hear Bloomberg’s cross-appeal on the issue of whether the sound recording of 

the conference call is copyrightable in the first instance.

Plaintiff-Appellant The Swatch Group Management Services Ltd. 

(“Swatch”), a subsidiary of Swatch Group, appeals from a judgment of the 

United States District Court for the Southern District of New York (Hellerstein, 

J.), which sua sponte granted summary judgment to Bloomberg on Swatch’s claim 

of copyright infringement on the ground of fair use. On appeal, Swatch argues 

that the district court’s ruling was premature because Swatch had not yet had the 

opportunity to take discovery on three issues: (1) whether Bloomberg obtained 

and disseminated the sound recording for the purpose of “news reporting” or for 

some other business purpose; (2) Bloomberg’s state of mind when it obtained and 

disseminated the recording; and (3) whether Bloomberg subscribers actually 
4

listen to sound recordings of earnings calls, or instead glean information about 

such calls by reading written transcripts or articles. Swatch also contends that the 

district court erroneously concluded that Swatch had published the sound 

recording before Bloomberg disseminated it. More broadly, Swatch argues that 

the district court erred in how it evaluated and balanced the various 

considerations relevant to fair use. For the reasons set forth below, we agree with 

the district court and hold that, upon consideration of the relevant factors and 

resolving all factual disputes in favor of Swatch, Bloomberg has engaged in fair 

use.

In addition, Bloomberg cross-appeals from the same judgment of the 

district court, urging us to hold that Swatch’s sound recording is not protected by 

the copyright laws in the first place. Swatch has moved to dismiss the 

cross-appeal on the grounds that Bloomberg lacks appellate standing and we lack 

appellate jurisdiction. That motion is granted. Because the judgment designated 

in Bloomberg’s notice of appeal was entered in Bloomberg’s favor, Bloomberg is 

not “aggrieved by the judicial action from which it appeals,” Great Am. Audio 

Corp. v. Metacom, Inc., 938 F.2d 16, 19 (2d Cir. 1991), and therefore lacks standing. 
5

Similarly, although the district court later dismissed as moot Bloomberg’s 

counterclaim for a declaration that Swatch’s copyright is invalid, Bloomberg 

never filed an additional notice of appeal identifying that subsequent order as the 

subject of an appeal, and thus we have no jurisdiction to review it.

Accordingly, we affirm the judgment of the district court, and we dismiss 

the cross-appeal.

BACKGROUND

I. Factual Background

The following facts are drawn from the record before the district court and 

are undisputed unless otherwise noted.

On February 8, 2011, Swatch Group released its 2010 earnings report, a 

seven-page compilation of financial figures and textual narrative about the 

company’s financial performance during the prior year. Because Swatch Group is 

incorporated in Switzerland and its shares are publicly traded on the Swiss stock 

exchange, Swatch Group is governed by Swiss securities law and the listing rules 

of the Swiss exchange. In accordance with those rules, Swatch Group filed its 

earnings report with the exchange before trading opened for the day, and
6

simultaneously posted the report in four languages (English, German, French, 

and Italian) on the Investor Relations section of its website.

After it released this information to the public, Swatch Group held a 

conference call with an invited group of financial analysts, as is its custom. Swiss 

law permits public companies to hold this kind of earnings call with a limited 

group of analysts, provided that the company does not disclose non-public, 

significantly price-sensitive facts during the call. Here, Swatch Group did not 

reveal any significantly price-sensitive facts during the call that had not already 

been revealed in its previously released report. In advance of the call, Swatch 

Group sent invitations to all 333 financial analysts who were registered with 

Swatch Group’s Investor Relations Department. Swatch Group held the call at 2 

p.m. local Swiss time, several hours after it had released the earnings report, in 

order to allow European, American, and Asian analysts to participate. In the end, 

approximately 132 analysts joined the call. For Swatch Group’s part, its Chief 

Executive Officer, Chief Financial Officer, and three other senior executives 

participated in the call from the company’s offices in Switzerland.
7

At Swatch Group’s request, an audio conferencing vendor recorded the 

entire earnings call as it was in progress. At the beginning of the call, an operator 

affiliated with the vendor welcomed the analysts to the call and told them, “This 

call must not be recorded for publication or broadcast.” J.A. 22. Swatch Group’s 

executives then provided commentary about the company’s financial 

performance and answered questions posed by fifteen of the analysts. The entire 

call lasted 132 minutes; Swatch Group executives spoke for approximately 106 of 

those minutes.

Neither Bloomberg nor any other press organization was invited to the 

earnings call. Nevertheless, within several minutes after the call ended, 

Bloomberg obtained a sound recording and written transcript of the call and 

made them both available online, without alteration or editorial commentary, to

subscribers to its online financial research service known as Bloomberg 

Professional. According to Bloomberg’s promotional materials, Bloomberg 

Professional provides “[a] massive data stream” with “rich content” that is 

“unparalleled in scope and depth” and is “delivered to your desktop in real 

time,” as well as “access to all the news, analytics, communications, charts, 
8

liquidity, functionalities and execution services that you need to put knowledge 

into action.” Id. 640.

On February 10, 2011, after Swatch Group learned that the recording and 

transcript had been made available on Bloomberg terminals, Swatch Group sent 

Bloomberg a cease-and-desist letter demanding that they be removed. Bloomberg 

refused. On February 14, 2011, Swatch then filed its initial complaint against 

Bloomberg in this action claiming infringement of its copyright in the sound 

recording of the earnings call. In an agreement signed by representatives of 

Swatch Group and Swatch on February 14 and 15, 2011, Swatch Group assigned 

its interest in the copyright to its subsidiary Swatch.

Two weeks later, on March 2, 2011, 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.
9

II. Procedural History

As stated, Swatch filed its initial complaint in this action on February 14, 

2011. Swatch then twice amended its complaint; the operative pleading thus is

the Second Amended Complaint, filed on May 10, 2011. The Second Amended 

Complaint alleges that, by recording the earnings call and making the recording 

available to the public, Bloomberg infringed Swatch’s exclusive rights “to 

reproduce the copyrighted work” and “to distribute copies or phonorecords of 

the work to the public.” 17 U.S.C. § 106(1), (3). Swatch does not challenge 

Bloomberg’s preparation or distribution of the written transcript of the earnings 

call.1

On May 20, 2011, Bloomberg moved under Rule 12(b)(6) to dismiss the 

Second Amended Complaint for failure to state a claim, arguing inter alia that the 

earnings call was not copyrightable in the first place and that Bloomberg’s 

copying and dissemination of the call was fair use. The district court denied that 

motion in an order entered on August 30, 2011. Swatch Grp. Mgmt. Servs. Ltd. v. 

 

1 Swatch has disclaimed any such challenge in light of 17 U.S.C. § 114(b), under which a 

copyright owner’s right to prepare derivative works based on a sound recording “is 

limited to the right to prepare a derivative work in which the actual sounds fixed in the 

sound recording are rearranged, remixed, or otherwise altered in sequence or quality.”
10

Bloomberg L.P. (“Swatch I”), 808 F. Supp. 2d 634 (S.D.N.Y. 2011). The district court 

found that the recording was copyrightable, id. at 638–39, and declined to 

address the “fact-intensive” questions implicated by Bloomberg’s fair use defense

on a motion to dismiss, id. at 641.

At an in-court conference held two weeks later on September 16, 2011,

however, the district court informed the parties of its belief that it could resolve 

the case through a motion for judgment on the pleadings, and directed Swatch to 

file such a motion. Swatch moved as directed on October 21, 2011, and 

Bloomberg opposed. The district court held oral argument on December 12, 2011, 

at which it denied Swatch’s motion and explained that, in the court’s view, 

“defendant’s use qualifies as fair use.” J.A. 581. Later that day, the district court

issued a summary order stating that it had “preliminarily granted judgment to 

Defendant on the basis that if Defendant’s alleged actions constitute 

infringement, they are protected as fair use.” Id. 584. The order directed Swatch 

to submit “a brief regarding the existence of any triable issues of material fact 

with respect to Defendant’s fair use affirmative defense.” Id. Swatch did so, 

pointing out that it had taken no discovery in the action.
11

In an opinion and order entered on May 17, 2012, the district court sua 

sponte granted summary judgment to Bloomberg, finding that Bloomberg’s 

copying and dissemination of the recording qualify as fair use. Swatch Grp. Mgmt. 

Servs. Ltd. v. Bloomberg L.P. (“Swatch II”), 861 F. Supp. 2d 336 (S.D.N.Y. 2012). On 

May 18, 2012, the clerk of the district court entered judgment “in favor of 

defendant.” J.A. 7.

On June 14, 2012, Swatch filed a timely notice of appeal from that 

judgment. On June 28, 2012, Bloomberg filed a notice of cross-appeal from the 

same judgment, and on July 24, 2012, Swatch moved to dismiss the cross-appeal.

On August 27, 2012, after the parties had filed a stipulation of dismissal without 

prejudice to reinstatement under Local Rule 42.1, the district court issued an 

order dismissing as moot all of Bloomberg’s counterclaims, including the

counterclaim for a declaration that Swatch’s copyright is invalid. On November 

13, 2012, upon receipt of a letter from Swatch, the Clerk reinstated the appeal.

Finally, on January 14, 2013, the motions panel of this Court referred Swatch’s 

motion to dismiss the cross-appeal to the merits panel.
12

DISCUSSION

We review a district court’s grant of summary judgment de novo, resolving 

all ambiguities and drawing all reasonable inferences against the moving party. 

See Garanti Finansal Kiralama A.S. v. Aqua Marine & Trading Inc., 697 F.3d 59, 63–64 

(2d Cir. 2012). Summary judgment is appropriate only where the record shows

“that there is no genuine dispute as to any material fact and that the movant is 

entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). Under Federal Rule 

of Civil Procedure 56(f), district courts have discretion to grant summary 

judgment sua sponte “[a]fter giving notice and a reasonable time to respond” and 

“after identifying for the parties material facts that may not be genuinely in 

dispute.” Fed. R. Civ. P. 56(f), (f)(3); see also Celotex Corp. v. Catrett, 477 U.S. 317, 

326 (1986) (“[D]istrict courts are widely acknowledged to possess the power to 

enter summary judgments sua sponte, so long as the losing party was on notice 

that [it] had to come forward with all of [its] evidence.”). Before granting 

summary judgment sua sponte, however, a district court “must assure itself that 

following the procedures set out in Rule 56[(a)–(e)] would not alter the outcome.” 

Ramsey v. Coughlin, 94 F.3d 71, 74 (2d Cir. 1996). In other words, “[d]iscovery 
13

must either have been completed, or it must be clear that further discovery 

would be of no benefit,” such that “the record . . . reflect[s] the losing party's 

inability to enhance the evidence supporting its position and the winning party's 

entitlement to judgment.” Id.2

I. Fair Use

The Copyright Act of 1976 grants copyright holders a bundle of exclusive 

rights, including the rights to “reproduce, perform publicly, display publicly, 

prepare derivative works of, and distribute copies of” the copyrighted work. 

Arista Records LLC v. Doe 3, 604 F.3d 110, 117 (2d Cir. 2010) (citing 17 U.S.C. 

§ 106). Because copyright law recognizes the need for “breathing space,” Campbell 

v. Acuff-Rose Music, Inc., 510 U.S. 569, 579 (1994), however, a defendant who 

otherwise would have violated one or more of these exclusive rights may avoid 

liability if he can establish that he made “fair use” of the copyrighted material. 

Though of common-law origin, the doctrine of fair use is now codified at 17 

 

2 Although Ramsey was decided before Rule 56 was amended in 2010 to provide express 

procedures governing the grant of summary judgment independent of a motion, its 

statements regarding the care a district court must take before sua sponte granting 

summary judgment remain good law. See Fed. R. Civ. P. 56, advisory comm. notes (2010 

Amendments) (“Subdivision (f) brings into Rule 56 text a number of related procedures 

that have grown up in practice.”).
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U.S.C. § 107, which provides that “the fair use of a copyrighted work . . . for 

purposes such as criticism, comment, news reporting, teaching (including 

multiple copies for classroom use), scholarship, or research, is not an 

infringement of copyright.”

To evaluate whether a particular use qualifies as “fair use,” we must 

engage in “an open-ended and context-sensitive inquiry.” Blanch v. Koons, 467 

F.3d 244, 251 (2d Cir. 2006). The Copyright Act directs that, in determining 

whether a particular use is fair, “the factors to be considered shall include”:

(1) the purpose and character of the use, including whether such 

use is of a commercial nature or is for nonprofit educational 

purposes;

(2) the nature of the copyrighted work;

(3) the amount and substantiality of the portion used in relation 

to the copyrighted work as a whole; and

(4) the effect of the use upon the potential market for or value of 

the copyrighted work.

17 U.S.C. § 107. Though mandatory, these four factors are non-exclusive.

Moreover, “[a]lthough defendants bear the burden of proving that their use was 

fair, they need not establish that each of the factors set forth in § 107 weighs in 

their favor.” NXIVM Corp. v. Ross Inst., 364 F.3d 471, 476–77 (2d Cir. 2004)
15

(internal citation omitted). Rather, “[a]ll [factors] are to be explored, and the 

results weighed together, in light of the purposes of copyright.” Campbell, 510 

U.S. at 578. “The ultimate test of fair use is whether the copyright law’s goal of 

promoting the Progress of Science and useful Arts would be better served by 

allowing the use than by preventing it.” Bill Graham Archives v. Dorling Kindersley 

Ltd., 448 F.3d 605, 608 (2d Cir. 2006) (quoting Castle Rock Entm’t, Inc. v. Carol 

Publi’g Grp., 150 F.3d 132, 141 (2d Cir. 1998)) (ellipsis omitted).

The determination of fair use is a mixed question of fact and law. Harper & 

Row Publishers, Inc. v. Nation Enters., 471 U.S. 539, 560 (1985). While we have

reversed district courts that too hastily resolved factual questions relevant to fair 

use on summary judgment, see, e.g., Ringgold v. Black Entm’nt Television, Inc., 126 

F.3d 70, 81 (2d Cir. 1997), “this [C]ourt has on a number of occasions resolved fair 

use determinations at the summary judgment stage where there are no genuine 

issues of material fact.” Blanch, 467 F.3d at 250 (quoting Castle Rock Entm’t, 150 

F.3d at 137) (ellipsis omitted).
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A. Purpose and Character of Use

We turn first to “the purpose and character of the use.” 17 U.S.C. § 107(1). 

This statutory factor encompasses within it a number of distinct considerations, 

including “whether [the] use is of a commercial nature or is for nonprofit 

educational purposes,” id.; whether the use is “transformative” or “merely 

supersedes the objects of the original creation,” Campbell, 510 U.S. at 579 

(quotation marks and brackets omitted); whether the defendant acted in good 

faith, see NXIVM, 364 F.3d at 478; and whether the defendant engaged in “news 

reporting” or another activity illustratively listed in § 107 as indicative of fair use, 

see Harper & Row, 471 U.S. at 561. Below, the district court found that this factor as 

a whole favored fair use because “[Bloomberg]’s work as a prominent gatherer 

and publisher of business and financial information serves an important public 

interest, for the public is served by the full, timely and accurate dissemination of 

business and financial news.” Swatch II, 861 F. Supp. 2d at 340. 

Swatch argues that this conclusion was error for several reasons. First, 

Swatch contends that the district court improperly accepted Bloomberg’s 

unsubstantiated claim that it had engaged in “news reporting.” Swatch notes that 
17

Bloomberg itself has characterized its Bloomberg Professional service as 

delivering both financial “news” and “data,” and argues that the district court 

erred in denying Swatch the chance to develop facts in discovery to show that the 

sound recording at issue here is the latter and not the former. Similarly, Swatch 

argues that the district court improperly denied Swatch the chance to develop 

facts relevant to Bloomberg’s state of mind. Swatch acknowledges that the 

district court “credited [Swatch]’s allegations that [Bloomberg] was not 

authorized to access the Earnings Call and that [Bloomberg]’s publication of the 

Infringing Work violated [Swatch Group’s] directive,” Swatch II, 861 F. Supp. 2d

at 343, but argues that Swatch should have been able to take discovery into 

whether Bloomberg knew at the time that obtaining and publishing the recording 

violated Swatch Group’s directive. Swatch also argues that it should have been 

permitted to take discovery into whether Bloomberg Professional subscribers 

actually choose to access information about earnings calls by listening to 

recordings, or instead by reading written transcripts or articles. More broadly, 

Swatch argues that the district court gave insufficient weight to the fact that 
18

Bloomberg’s use was commercial and did not transform the underlying 

recording.

We find these arguments unpersuasive and hold that the first statutory 

factor favors fair use here. To begin with, whether one describes Bloomberg’s 

activities as “news reporting,” “data delivery,” or any other turn of phrase, there 

can be no doubt that Bloomberg’s purpose in obtaining and disseminating the 

recording at issue was to make important financial information about Swatch 

Group available to American investors and analysts. That kind of information is 

of critical importance to American securities markets. Indeed, as Bloomberg 

points out, the Securities and Exchange Commission (“SEC”) has mandated that 

when American companies disclose this kind of material nonpublic information, 

they must make it available to the public immediately. See Regulation FD, 17 

C.F.R. § 243.100. At a minimum, a use of copyrighted material that serves this 

public purpose is very closely analogous to “news reporting,” which is indicative 

of fair use. See Harper & Row, 471 U.S. at 561 (“News reporting is one of the 

examples enumerated in § 107 to ‘give some idea of the sort of activities the 

courts might regard as fair use under the circumstances.’” (quoting S. Rep. No. 
19

94-473, at 61 (1975)). We agree with the district court, moreover, that this

important public purpose underlying Bloomberg’s use overcomes the 

countervailing weight we would otherwise give to Bloomberg’s clandestine 

methods and the commercial, nontransformative nature of its use.3

Seizing on Bloomberg’s citation to Regulation FD, Swatch protests that in 

crafting that regulation, the SEC expressly exempted “foreign private issuer[s]” 

like Swatch Group that are “incorporated or organized under the laws of [a] 

foreign country.” 17 C.F.R. §§ 243.101(b), 230.405. In fact, as initially proposed, 

Regulation FD would have applied to such issuers, see Selective Disclosure and 

Insider Trading, 64 Fed. Reg. 72,590, 72,597 (Dec. 28, 1999), but the SEC 

ultimately “determined to exempt foreign private issuers . . . as it has in the past 

exempted them from certain U.S. reporting requirements such as Forms 10-Q and 

8-K,” Selective Disclosure and Insider Trading, 65 Fed. Reg. 51,716, 51,724 (Aug. 

24, 2000). Swatch thus argues that giving weight to a public interest in the 

 

3 We have held that where “the allegedly infringing work fits the description of uses 

described in § 107,” there is “a strong presumption that factor one favors the 

defendant.” NXIVM, 364 F.3d at 477 (quoting Wright v. Warner Books, Inc., 953 F.2d 731, 

736 (2d Cir. 1991)). Resolving all factual disputes in Swatch’s favor, we assume here that 

Bloomberg’s use falls outside of the core notion of “news reporting” Congress 

envisioned when it enacted § 107. We therefore will not apply the presumption.
20

dissemination of important financial information in this case would in effect 

erase foreign issuers’ exemption from Regulation FD and set up organizations 

like Bloomberg as private enforcers of U.S. public disclosure rules.

This argument, however, misapprehends the limited relevance of 

Regulation FD to this case. The regulation merely provides additional support for 

a proposition that would be clear in any event: American investors and analysts 

have an interest in obtaining important financial information about companies 

whose securities are traded in American markets. The fact that the SEC has 

chosen not to require foreign issuers to follow certain disclosure rules imposed 

on domestic issuers in no way implies that information about foreign issuers is 

irrelevant to American markets. Indeed, Swatch Group recognized as much by 

scheduling its earnings call at a time when American analysts would be able to 

attend. Accordingly, contrary to Swatch’s suggestion, nothing in our decision 

today subjects Swatch Group or any other foreign issuer to the requirements of 

Regulation FD. Nor do we hold that a foreign issuer’s failure to follow Regulation 

FD prevents it from enforcing its copyrights in the United States. We merely hold 

that where a financial research service obtains and disseminates important 
21

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.

Swatch stands on firmer ground when it stresses the commercial nature of 

Bloomberg’s use. Section 107 expressly directs courts to consider whether the use 

“is of a commercial nature or is for nonprofit educational purposes,” 17 U.S.C. 

§ 107(1), and we have held that “[t]he 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.” Am. Geophysical Union v. Texaco Inc., 60 F.3d 913, 922 

(2d Cir. 1994). It is undisputed here that Bloomberg is a commercial enterprise 

and that Bloomberg Professional is a subscription service available to paying 

users. At the same time, we have recognized that “[a]lmost all newspapers, books 

and magazines are published by commercial enterprises that seek a profit,” 

Consumers Union of U.S., Inc. v. Gen. Signal Corp., 724 F.2d 1044, 1049 (2d Cir. 

1983), and have discounted this consideration where “the link between [the 

defendant]’s commercial gain and its copying is . . . attenuated” such that it 
22

would be misleading to characterize the use as “commercial exploitation.” Am. 

Geophysical Union, 60 F.3d at 922. Here, Swatch does not contest that Bloomberg 

Professional is a multifaceted research service, of which disseminating sound 

recordings of earnings calls is but one small part. Moreover, it would strain 

credulity to suggest that providing access to Swatch Group’s earnings call more 

than trivially affected the value of that service. So while we will not ignore the 

commercial nature of Bloomberg’s use, we assign it somewhat reduced weight.

Bloomberg’s lack of good faith likewise merits relatively little weight in 

this case. “[W]hile the good or bad faith of a defendant generally should be 

considered, it generally contributes little to fair use analysis.” NXIVM, 364 F.3d at 

479 n.2 (citing Campbell, 510 U.S. at 585 n. 18). Bloomberg does not dispute that it

obtained the recording of the earnings call in violation of Swatch Group’s express 

directive that the call “must not be recorded for publication or broadcast,” J.A.

22, and, resolving all factual disputes in Swatch’s favor, we must assume 

Bloomberg was fully aware that its use was contrary to Swatch Group’s 

instructions. But Bloomberg’s overriding purpose here was not to “scoop[]” 

Swatch or “supplant the copyright holder’s commercially valuable right of first 
23

publication,” Harper & Row, 471 U.S. at 562, but rather simply to deliver 

newsworthy financial information to American investors and analysts. That kind 

of activity, whose protection lies at the core of the First Amendment, would be 

crippled if the news media and similar organizations were limited to authorized 

sources of information. See generally New York Times Co. v. United States, 403 U.S. 

713 (1971).

Fair use must also take account of the transformativeness of the use—that 

is, the degree to which “the new work merely supersedes the objects of the 

original creation, or instead adds something new, with a further purpose or 

different character, altering the first with new expression, meaning, or message.” 

Campbell, 510 U.S. at 579 (internal citations, quotation marks and alterations

omitted). While a transformative use generally is more likely to qualify as fair 

use, “transformative use is not absolutely necessary for a finding of fair use,” id., 

and indeed, some core examples of fair use can involve no transformation 

whatsoever. See 17 U.S.C. § 107 (listing “multiple copies for classroom use” 

among illustrative examples of fair use).
24

In the context of news reporting and analogous activities, moreover, the 

need to convey information to the public accurately may in some instances make 

it desirable and consonant with copyright law for a defendant to faithfully 

reproduce an original work rather than transform it. In such cases, courts often

find transformation by emphasizing the altered purpose or context of the work, 

as evidenced by surrounding commentary or criticism. See, e.g., Bill Graham 

Archives, 448 F.3d at 609–610; Nunez v. Caribbean Int'l News Corp., 235 F.3d 18, 

22–23 (1st Cir. 2000). Here, Bloomberg provided no additional commentary or 

analysis of Swatch Group’s earnings call. But by disseminating not just a written 

transcript or article but an actual sound recording, Bloomberg was able to convey

with precision not only what Swatch Group’s executives said, but also how they 

said it. This latter type of information may be just as valuable to investors and 

analysts as the former, since a speaker’s demeanor, tone, and cadence can often

elucidate his or her true beliefs far beyond what a stale transcript or summary

can show. As courts have long recognized in the context of witness testimony, “’a 

cold transcript contains only the dead body of the evidence, without its spirit,’” 

and “cannot reveal . . . ‘[the speaker’s] hesitation, his doubts, his variations of
25

language, his confidence or precipitancy, his calmness or consideration.’” Zhou 

Yun Zhang v. INS, 386 F.3d 66, 73–74 (2d Cir. 2004) (quoting Regina v. Bertrand, 

L.R. [1867] 1 L.R.P.C. 520, 535), overruled on other grounds by Shi Liang Lin v. U.S. 

Dep't of Justice, 494 F.3d 296, 305 (2d Cir. 2007).

To be sure, “[t]he promise of copyright would be an empty one if it could 

be avoided merely by dubbing the infringement a fair use ‘news report.’” Harper 

& Row, 471 U.S. at 557. But here, in light of the independent informational value 

inherent in a faithful recording of the earnings call, the fact that Bloomberg did 

not transform Swatch’s work through additional commentary or analysis does 

not preclude a finding that the “purpose and character” of Bloomberg’s use 

favors fair use.

Our decisions in Nihon Keizai Shimbun, Inc. v. Comline Business Data, Inc., 

166 F.3d 65 (2d Cir. 1999), Wainwright Securities, Inc. v. Wall Street Transcript Corp., 

558 F.2d 91 (2d Cir. 1977), and Financial Information, Inc. v. Moody's Investors 

Service, Inc. (“FII”), 751 F.2d 501 (2d Cir. 1984), on which Swatch relies, are not to 

the contrary. In those cases, we rejected fair use arguments pressed by 

defendants who purported to be serving the public by providing access to 
26

important financial information. In Nihon and Wainwright, we stressed that the 

defendants had not supplemented or otherwise transformed the plaintiffs’ 

works, but had instead simply translated Japanese business articles into English, 

Nihon, 166 F.3d at 69, or recounted the critical conclusions and predictions from 

research reports about major industrial and financial corporations, Wainwright, 

558 F.2d at 93 & n.1. In FII, we rejected a fair use defense by a ratings agency that 

had copied information about municipal bond redemptions compiled by a 

competing financial publisher. FII, 751 F.2d at 502–03. Criticizing the district 

court’s conclusion that the defendant’s use served a “public function,” we stated 

that to so hold “would, it seems to us, state a rule that whenever there is a market 

for information, the paid delivery of goods to that market rises to a public 

function.” Id. at 509. We rejected such a rule, finding that it would “distort” 

proper fair use analysis. Id.

In all three of these cases, however, the defendants appropriated works in 

which the copyright owner had transformed raw financial information by 

compiling it from multiple sources or by mixing it with their own commentary 

and analysis. Here, by contrast, the statements captured in the sound recording, 
27

including the particular modes of expression used by Swatch Group’s executives, 

were themselves pieces of financial information. In other words, while our 

previous cases concerned the appropriation of secondary sources that had 

compiled or commented on financial news, this case concerns the use of a 

primary source that itself was financial news. We find this distinction significant.

As the Supreme Court has observed, “[t]he news element—the information 

respecting current events contained in the literary production—is not the creation 

of the writer, but is a report of matters that ordinarily are publici juris; it is the 

history of the day.” Harper & Row, 471 U.S. at 556 (quoting Int’l News Serv. v. 

Assoc. Press, 248 U.S. 215, 234 (1918)).

The discovery Swatch seeks would not alter our analysis. With respect to 

the request for discovery into whether Bloomberg delivered “news” or “data” to 

its subscribers, such a distinction raises a semantic rather than factual dispute. It 

is undisputed that Bloomberg gave subscribers access to the full, unaltered sound 

recording of Swatch Group’s earnings call as part of its paid financial research 

service. That is sufficient for present purposes. There is likewise no need for 

further discovery into Bloomberg’s good or bad faith, for we, like the district 
28

court, have resolved that subfactor in Swatch’s favor. We also see no need to 

resolve how many of Bloomberg’s subscribers chose to listen to the sound 

recording in question rather than read a written transcript or article. As we have 

explained, because the sound recording conveys information that a transcript or 

article cannot, the recording has independent value, regardless of how many

Bloomberg subscribers chose to avail themselves of that independent value in 

this instance.

This first factor accordingly favors fair use.

B. Nature of the Copyrighted Work

The second statutory fair use factor concerns “the nature of the 

copyrighted work.” 17 U.S.C. § 107(2). This factor accounts for the fact that “some 

works are closer to the core of intended copyright protection than others, with 

the consequence that fair use is more difficult to establish when the former works 

are copied.” Campbell, 510 U.S. at 586. As relevant here, this factor requires us to 

consider the extent of Swatch’s copyright in the recording—the “thickness” or 

“thinness” of Swatch’s exclusive rights—as well as whether or not the recording 

had been published at the time of Bloomberg’s use. See id. (citing cases). The 
29

district court determined that this factor favored fair use because Swatch’s 

copyright was “at best . . . ‘thin’” and because “the first publication of Swatch 

Group’s expression occurred prior to [Bloomberg]’s publication of the Infringing 

Work.” Swatch II, 861 F. Supp. 2d at 341.

Swatch argues that the district court erred in concluding that the recording 

had been published. Swatch points out that the Copyright Act contemplates two 

methods of publishing an audio recording: “the distribution of . . . phonorecords 

of a work to the public by sale or other transfer of ownership, or by rental, lease, 

or lending,” or “offering to distribute . . . phonorecords to a group of persons for 

purposes of further distribution, public performance, or public display.” 17 

U.S.C. § 101 (defining “publication”). “Phonorecords,” in turn, are defined as 

“material objects in which sounds . . . are fixed . . . and from which the sounds 

can be perceived, reproduced, or otherwise communicated.” Id. Applying these 

definitions, Swatch contends that the sound recording of the earnings call has 

never been published. Simply put, Swatch has never, before or after Bloomberg’s 

use, “distribut[ed]” a CD or other “material object” embodying the spoken 

commentary on the earnings call “to the public,” nor has it ever “offer[ed] to 
30

distribute” a phonorecord of the call to any “group of persons for purposes of 

further distribution, public performance, or public display.”

Swatch is unquestionably correct that the earnings call is unpublished 

under the definition of “publication” set forth in § 101. But that technical

definition does not control our analysis of this aspect of the second fair use factor.

While we will consider the statutory definition, we also will not blind ourselves 

to the fact that Swatch Group invited over three hundred investment analysts 

from around the globe to the earnings call, out of which over a hundred actually 

attended. Thus, even though the sound recording remains statutorily 

unpublished, it is clear that Swatch was not deprived of the ability to “control the 

first public appearance of [its] expression,” including “when, where, and in what 

form” it appeared. Harper & Row, 471 U.S. at 564.

Swatch insists that because the definitions in § 101 by their terms apply for 

all purposes under the Copyright Act “[e]xcept as otherwise provided in this 

title,” 17 U.S.C. § 101, the statutory definition of “publication” must control. Not 

so. While in general, “[s]tatutory definitions control the meaning of statutory

words,” Burgess v. United States, 553 U.S. 124, 129 (2008) (quoting Lawson v. 
31

Suwanee Fruit & S.S. Co., 336 U.S. 198, 201 (1949)), in this case, no variant of the 

word “publish” appears in the text of the second fair use factor in § 107. Whether

or not a work was published thus enters into our analysis of this factor as a 

judicial gloss on “the nature of the copyrighted work.” That gloss, of course, is 

firmly grounded in fair use’s common law origins and the legislative history of 

the 1976 Copyright Act. See Harper & Row, 471 U.S. at 552–54.

To the extent the text of § 107 mentions publication, it is only in a closing 

proviso cautioning that “[t]he fact that a work is unpublished shall not itself bar a 

finding of fair use if such finding is made upon consideration of all the above 

factors.” Congress added this proviso to § 107 in 1992, see Pub. L. No. 102-492, 

106 Stat. 3145 (1992), to clarify, in response to certain decisions of this Court, that 

there is no “per se rule barring any fair use of unpublished works.” H.R. Rep. No. 

102-836, at 4, 9 (1992) (discussing New Era Publications International, ApS v. Henry 

Holt & Co., Inc., 873 F.2d 576 (2d Cir. 1989), and Salinger v. Random House, Inc., 811

F.2d 90 (2d Cir. 1987)). While this proviso indicates by clear implication that 

inquiry into a work’s publication status is relevant to fair use, it in no way limits 

our consideration of that issue to the statutory definition of “publication” in 
32

§ 101. To the contrary, the proviso directs that if we find a work to be 

“unpublished,” however that term is understood, our analysis of the four 

statutory factors, including “the nature of the copyrighted work,” cannot end 

there.

Limiting our consideration of a work’s publication status to the statutory 

definition, moreover, would obscure the different purposes served by the 

statutory definition and the judicial gloss on “the nature of the copyrighted 

work” in the context of fair use. The statutory concept of “publication” serves 

numerous purposes, such as triggering the requirement to deposit a copy with 

the Library of Congress, see 17 U.S.C. § 407, measuring the copyright term for 

certain categories of works, see id. § 302(c)–(e), setting the circumstances under 

which works by foreign authors are protected, see id. § 104(b), and determining 

the legal effect of registration, see id. §§ 410(c), 412. See also 1 Nimmer on 

Copyright § 4.01 (explaining the significance of publication). Publication as a 

judicial gloss on “the nature of the copyrighted work,” by contrast, aims to take 

account of “the author’s right to control the first public appearance of his 

expression,” Harper & Row, 471 U.S. at 564, which in turn forms part of our 
33

“open-ended and context-sensitive inquiry” into whether allowing the use in 

question would serve the goals of copyright, Blanch, 467 F.3d at 251.

This is not the first time that we have found that the second statutory factor 

favors fair use even though the work in question was technically unpublished 

under the statutory definition, see Diamond v. Am-Law Pub. Corp., 745 F.2d 142, 

144, 148 (2d Cir. 1984), and courts in fact commonly look past the statutory 

definition when considering this issue, see, e.g., Rotbart v. J.R. O'Dwyer Co., Inc.,

No. 94 Civ. 2091 (JSM), 1995 WL 46625, at *4 (S.D.N.Y. Feb. 7, 1995) (finding that 

an unfixed, undisseminated talk, delivered publicly, had been “de facto

published” for purposes of fair use); see also 4 Nimmer on Copyright § 13.05 

[A][2][b][ii] (“If the author does not seek confidentiality, fair use is not 

necessarily precluded even as to an unpublished work.”).4 We accordingly agree 

with the district court that although the sound recording is statutorily 

unpublished, because Swatch Group publicly disseminated the spoken 

 

4 Indeed, in discussing the relevance of publication to fair use in Harper & Row, the 

Supreme Court indicated that “even substantial quotations might qualify as fair use in a 

review of a published work or a news account of a speech that had been delivered to the 

public or disseminated to the press.” 471 U.S. at 564. Like the conference call at issue 

here, a publicly delivered speech would not, by the mere fact of its public delivery, be 

“publi[shed]” under § 101.
34

performance embodied in the recording before Bloomberg’s use, the publication 

status of the work favors fair use.

Swatch does not challenge the district court’s determination that Swatch’s 

copyright in the earnings call is “at best . . . ‘thin,’” Swatch II, 861 F. Supp. 2d at 

341, nor could it. It is well established that “the scope of fair use is greater with 

respect to factual than non-factual works.” New Era Publ’ns, 904 F.2d at 157. 

Moreover,

[e]ven within the field of fact works, there are gradations as to the 

relative proportion of fact and fancy. One may move from sparsely 

embellished maps and directories to elegantly written biography.

The extent to which one must permit expressive language to be 

copied, in order to assure dissemination of the underlying facts, will 

thus vary from case to case.

Harper & Row, 471 U.S. at 563 (quoting Robert A. Gorman, Fact or Fancy? The 

Implications for Copyright, 29 J. Copyright Soc’y 560, 561 (1982)).

There can be no doubt as to the manifestly factual character of the earnings 

call in this case. The entire copyrighted portion of the call consists of Swatch 

Group executives explaining the company’s financial performance and outlook to 

a group of investment analysts. And while we assume without deciding in this 

appeal that the call contained sufficient original expression—in the form of the 
35

executives’ tone, cadence, accents, and particular choice of words—to be 

copyrightable, the purpose of the call was not in any sense to showcase those 

forms of expression. Rather, the call’s sole purpose was to convey financial 

information about the company to investors and analysts.

5

The through-and-through factual nature of the earnings call places it at the 

very edge of copyright’s protective purposes. In light of that fact, as well as

Swatch Group’s prior dissemination of its executives’ copyrighted expression, we 

find that the second statutory factor strongly favors fair use.

C. Amount and Substantiality of the Portion Used

We turn now to “the amount and substantiality of the portion used in 

relation to the copyrighted work as a whole.” 17 U.S.C. § 107(3). This factor asks 

 

5 Even the portions of the call Swatch quotes as demonstrating the originality of the 

executives’ statements are overwhelmingly factual in nature. Swatch points to the 

following passage, for example:

So we’re not looking desperately for someone else, but I can tell you that 

there are many companies out there who would like to benefit from the 

products, the[] know how, the management capabilities of Swatch Group.

And you should ask the other companies out there, even big players, if 

they would not think that—being part of The Swatch Group, they will do 

much better. Look at the results and margins and what they are doing, 

look at the regional trends, I think you would find many of them.

Appellant’s Br. 9 (quoting J.A. 153 at 37:25–38:43).
36

whether “the quantity and value of the materials used are reasonable in relation 

to the purpose of the copying.” Campbell, 510 U.S. at 586 (internal citations and 

quotation marks omitted). In general, “the more of a copyrighted work that is 

taken, the less likely the use is to be fair.” Infinity Broad. Corp. v. Kirkwood, 150 

F.3d 104, 109 (2d Cir. 1998). It is undisputed here that Bloomberg used the entire 

work. The district court acknowledged that “this generally weighs against fair 

use,” but found that the public interest in the information contained in the 

recording “is better served by the dissemination of that information in its 

entirety, including the incidents of oral speech that do not translate onto the page 

but color the purely factual content.” Swatch II, 861 F. Supp. 2d at 342.

Swatch argues that the district court improperly resolved this factor in 

Bloomberg’s favor because, as it also argued with respect to the first fair use 

factor, there are genuine disputes of material fact regarding whether Bloomberg 

subscribers glean information about earnings calls by listening to audio 

recordings or instead by reading a written transcript or article.

We are unpersuaded. As an initial matter, we do not understand the 

district court to have affirmatively weighed the third statutory fair use factor in 
37

Bloomberg’s favor. Such a holding would have been novel, as “[n]either our 

court nor any of our sister circuits has ever ruled that the copying of an entire 

work favors fair use.” Bill Graham Archives, 448 F.3d at 613. Rather, we believe that 

the district court found this factor neutral, refusing to weigh it in Swatch’s favor 

despite Bloomberg’s use of the entire recording because of the public interest in 

the information embodied in the recording. That holding is entirely consistent 

with our case law. As we have recognized, a number of courts “have concluded 

that such copying does not necessarily weigh against fair use because copying 

the entirety of a work is sometimes necessary to make a fair use.” Id. (citing 

cases); see also Sony Corp. of Am. v. Universal City Studios, Inc., 464 U.S. 417, 449–55 

(1984) (finding copying of an entire work to be fair use).

For the reasons already explained in our discussion of the first fair use 

factor, we agree with the district court that Bloomberg’s use of the entire 

recording was reasonable in light of its purpose of disseminating important 

financial information to American investors and analysts. The recording has

independent informational value over and above the value of a written transcript 

or article, regardless of how many Bloomberg subscribers took advantage of that 
38

value in this instance. Like the district court, we accordingly weigh this factor in 

neither party’s favor.

D. Effect upon the Market for or Value of the Original

The final fair use factor considers “the effect of the use upon the potential 

market for or value of the copyrighted work.” 17 U.S.C. § 107(4). This factor 

“requires courts to consider not only the extent of market harm caused by the 

particular actions of the alleged infringer, but also whether unrestricted and 

widespread conduct of the sort engaged in by the defendant would result in a 

substantially adverse impact on the potential market for the original.” Campbell, 

510 U.S. at 590 (quotation marks and alterations omitted). We have described this 

factor as “requir[ing] a balancing of ‘the benefit the public will derive if the use is 

permitted and the personal gain the copyright owner will receive if the use is 

denied.’” Bill Graham Archives, 448 F.3d at 613 (quoting MCA, Inc. v. Wilson, 677 

F.2d 180, 183 (2d Cir. 1981)).

The district court weighed this factor in favor of fair use, noting that “the 

relevant market effect is that which stems from [Bloomberg]'s use of the original 

expression of Swatch Group's senior officers, not that which stems from 
39

[Bloomberg]'s work as a whole.” Swatch II, 861 F. Supp. 2d at 342. The district 

court found “[n]othing in the record [that] suggests any possible market effect 

stemming from [Bloomberg]’s use of such a limited portion of the recording.” Id.

The district court further found that any conceivable effect was outweighed by 

the public benefit of providing the information contained in the call to American 

investors and analysts. Id.

Swatch argues that this analysis was erroneous because the district court 

again assumed that affording American investors and analysts access to the 

recording, as opposed to a written transcript or article, served the public interest. 

As we have already explained, we see nothing mistaken in that finding.

Swatch also contends that it was improperly denied the opportunity to 

take discovery into the existence of a market for audio recordings of earnings 

calls conducted by foreign companies that, like Swatch Group, are exempt from 

Regulation FD. Swatch admitted in its answer to Bloomberg’s counterclaims that 

it “did not seek to profit from the publication of the February 8, 2011 Earnings 

Call in audio or written format.” J.A. 294. Any discovery thus would concern a 
40

potential market, as yet untapped by Swatch, for recordings of exempt earnings 

calls. 

While the loss of a potential yet untapped market can be cognizable under 

the fourth fair use factor, the potential market here is defined so narrowly that it 

begins to partake of circular reasoning. As Professor Nimmer has observed, “it is 

a given in every fair use case that plaintiff suffers a loss of a potential market if 

that potential is defined as the theoretical market for licensing the very use at 

bar.” 4 Nimmer on Copyright § 13.05[A][4]. To guard against this “vice of 

circular reasoning,” our case law limits our consideration to a use’s “impact on 

potential licensing revenues for traditional, reasonable, or likely to be developed 

markets.” Am. Geophysical Union, 60 F.3d at 930–31. The hypothesized market for 

audio recordings of earnings calls convened by foreign companies that are

exempt from Regulation FD cannot meet this standard.

Moreover, to the extent that a financial news or research organization 

might be willing to pay to obtain such recordings, we must bear in mind that

while “[t]he immediate effect of our copyright law is to secure a fair return for an 

‘author’s’ creative labor,” the “ultimate aim is, by this incentive, to stimulate 
41

creativity for the general public good.” Fogerty v. Fantasy, Inc., 510 U.S. 517,

526–27 (1994) (quoting Twentieth Century Music Corp. v. Aiken, 422 U.S. 151, 156 

(1975)). 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.

Put differently, the “value” of the copyrighted expression for Swatch 

Group in this case lay not in its capacity to generate licensing royalties, but rather 

in its capacity to convey important information about the company to interested 

investment analysts. By making the recording available to analysts who did not 

or could not participate in the call initially, Bloomberg simply widened the 
42

audience of the call, which is consistent with Swatch Group’s initial purpose. Cf.

Sony, 464 U.S. at 421 (noting that the fair use known as “timeshifting”—recording 

a television program in order to view it in its entirety at a later time—“enlarges 

the television viewing audience” and therefore would not impair the value of the 

copyright to the plaintiffs). At most, Bloomberg’s use had the effect of depriving 

Swatch Group of the ability to know and control precisely who heard the call. But 

whatever cognizable interest Swatch Group has in maintaining that ability, it is 

far outweighed by the public interest in the dissemination of important financial 

information. As we recently observed in a related context, “a [f]irm's ability to 

make news—by issuing a [report] that is likely to affect the market price of a 

security—does not give rise to a right for it to control who breaks that news and 

how.” Barclays Capital Inc. v. Theflyonthewall.com, Inc., 650 F.3d 876, 907 (2d Cir. 

2011).

We accordingly agree with the district court that, balancing the public 

benefits of the use against the potential private royalties lost, the fourth statutory 

factor weighs in favor of fair use.
43

E. Balance of Factors

Balancing the four statutory factors together, we conclude that “the 

copyright law’s goal of promoting the Progress of Science and useful Arts would 

be better served by allowing [Bloomberg’s] use than by preventing it.” Bill 

Graham Archives, 448 F.3d at 608 (quoting Castle Rock, 150 F.3d at 141). Although 

Bloomberg obtained the recording without authorization and put it to 

commercial use without transforming it, Bloomberg’s use served the important 

public purpose, also reflected in Regulation FD, of ensuring the wide 

dissemination of important financial information. Moreover, although the 

recording remains technically unpublished under § 101, Swatch Group controlled 

the first dissemination of its executives’ expression to the public. In addition, 

Swatch’s copyright is exceedingly thin, as the recording is thoroughly factual in 

nature. Indeed, the whole purpose of the conference call was to convey financial 

information about Swatch Group to analysts and investors around the world. 

And while Bloomberg used the recording in its entirety, doing so was reasonably 

necessary in light of Bloomberg’s purpose. Finally, we are confident that this type 

of use will neither significantly impair the value of earnings calls to foreign 
44

companies that convene and record them, nor appreciably alter the incentives for 

the creation of original expression. In sum, Bloomberg’s use is fair use.

II. Bloomberg’s Cross-Appeal

Having resolved Swatch’s main appeal on the ground of fair use without 

reaching the issue of copyrightability, we must address Swatch’s motion to 

dismiss Bloomberg’s cross-appeal. That motion is granted, for two reasons.

First, it is axiomatic that “[i]n order to have standing to appeal, a party 

must be aggrieved by the judicial action from which it appeals.” Great Am. Audio 

Corp., 938 F.2d at 19. Here, the May 18, 2012 judgment identified in Bloomberg’s 

notice of appeal as the subject of the cross-appeal provides simply: “[f]or the 

reasons stated in the Court’s Opinion and Order dated May 17, 2012, judgment is 

hereby entered in favor of [Bloomberg].” Special App. 13. The May 17, 2012 

Opinion and Order, in turn, had explained that “since [Bloomberg]’s use qualifies 

as fair use, [Bloomberg] has not infringed, and [Swatch]’s Second Amended 

Complaint should be dismissed.” Swatch II, 861 F. Supp. 2d at 343.

Bloomberg argues that it is aggrieved by the May 18, 2012 judgment 

because it seeks a decision not only as to whether its use was fair use, but also as 
45

to whether Swatch’s recording was validly copyrightable in the first place. To the 

extent Bloomberg contends that Swatch’s complaint should be dismissed on the 

ground of copyright invalidity in addition to or instead of the ground of fair use, 

Bloomberg “is not urging that we alter the judgment in any way, but rather that 

we alter the reasons underlying it.” Allstate Ins. Co. v. A.A. McNamara & Sons, Inc., 

1 F.3d 133, 137 (2d Cir. 1993). While Bloomberg “is entitled to urge that we affirm 

the district court’s decision on any basis submitted to that court and supported 

by the record,” id. (quoting Great Am. Audio Corp., 938 F.2d at 19), it is not 

aggrieved by the district court’s dismissal of Swatch’s complaint on the ground 

of fair use, and therefore “is not entitled to cross-appeal,” id.

Second, to the extent that Bloomberg challenges the district court’s 

dismissal of its counterclaim seeking a declaration that Swatch’s copyright is 

invalid, that ruling of the district court is not properly before us. Federal Rule of 

Appellate Procedure 3(c)(1)(B) provides that a notice of appeal “must . . .

designate the judgment, order, or part thereof being appealed.” This requirement 

is “jurisdictional in nature.” Gonzales v. Thaler, 132 S. Ct. 641, 652 (2012) (quoting 

Smith v. Barry, 502 U.S. 244, 248 (1992)). Bloomberg’s notice of cross-appeal, filed 
46

on June 28, 2012, designates only the district court’s May 18, 2012 judgment, 

which did not resolve Bloomberg’s counterclaim. As the May 17, 2012 Opinion 

and Order incorporated into the judgment makes plain, the district court simply 

dismissed Swatch’s complaint on the ground of fair use, “assum[ing], without 

deciding, . . . that [Swatch]’s copyright is valid.” Swatch II, 861 F. Supp. 2d at 338. 

It was not until August 27, 2012, that the district court issued an order dismissing 

Bloomberg’s counterclaims as moot. Bloomberg never filed any additional or 

supplemental notice of appeal designating that subsequent order as the subject of 

a cross-appeal. While “we construe notices of appeal liberally, taking the parties’ 

intentions into account,” Shrader v. CSX Transp., Inc., 70 F.3d 255, 256 (2d Cir. 

1995), we cannot reasonably read Bloomberg’s notice of cross-appeal to 

contemplate review of an order that did not issue until nearly two months 

afterwards. While Bloomberg may be aggrieved by the dismissal of its 

declaratory counterclaim, which arguably would have enlarged Bloomberg’s 

rights, we have no jurisdiction to review it in the absence of a proper 

cross-appeal. See Int'l Ore & Fertilizer Corp. v. SGS Control Servs., Inc., 38 F.3d 

1279, 1286 (2d Cir. 1994).
47

Bloomberg’s cross-appeal accordingly is dismissed for lack of standing and

lack of jurisdiction.

CONCLUSION

For the foregoing reasons, Bloomberg’s cross-appeal is DISMISSED, and

the district court’s judgment is AFFIRMED.