It is not 'fair use', because it is not copyrighted in the first place.
'Fair use' is a legal defense to make copies of copyrighted material. Yes, it is copyrighted, but it is a fair use anyway, if X, Y and Z.
Facts and factual statements are not copyrightable in the US in the first place. Nor does copyright, in the US, prevent someone from comparing something to Rudyard Kipling's Just So Stories. So you are correct that there is no legal basis under copyright to prevent such a comparison, but it's not about fair use.
> It is not 'fair use', because it is not copyrighted in the first place.
> 'Fair use' is a legal defense to make copies of copyrighted material. Yes, it is copyrighted, but it is a fair use anyway, if X, Y and Z.
> Facts and factual statements are not copyrightable in the US in the first place. Nor does copyright, in the US, prevent someone from comparing something to Rudyard Kipling's Just So Stories. So you are correct that there is no legal basis under copyright to prevent such a comparison, but it's not about fair use.
This is simply incorrect: I wish you'd stop replying to everyone who mentions "fair use" with this. Nominative fair use is the ability to use someone else's trademark for the purposes of comparison. Thus, NYT's second demand, to cease referring to "The New York Times" on Scrollkit's website is entirely about fair use. It has nothing to do with NYT's copyright claims.
But according to the three criteria described in this article on nominative use[1], it looks like using the New York Times' trademark in this case would be perfectly legitimate:
The nominative use test essentially states that one party may use or refer to the trademark of another if:
1. The product or service cannot be readily identified without using the trademark (e.g. trademark is descriptive of a person, place, or product attribute).
2. The user only uses as much of the mark as is necessary for the identification (e.g. the words but not the font or symbol).
3. The user does nothing to suggest sponsorship or endorsement by the trademark holder. This applies even if the nominative use is commercial...
Oh, I totally agree this appears to be prima facie nominative fair use: using a competitor's name for the basis of comparison has a strong history in US trademark law. It'd be interesting to find out why The New York Times thinks otherwise.
My issue was with GGP's insistence that it had nothing to do with fair use or that people talking about fair use were necessarily talking about NYT's copyright claims. Fair use also applies to trademarks.
'Fair use' is a legal defense to make copies of copyrighted material. Yes, it is copyrighted, but it is a fair use anyway, if X, Y and Z.
Facts and factual statements are not copyrightable in the US in the first place. Nor does copyright, in the US, prevent someone from comparing something to Rudyard Kipling's Just So Stories. So you are correct that there is no legal basis under copyright to prevent such a comparison, but it's not about fair use.