IP Law Daily Critical YouTube video did not infringe filmmaker’s copyrights
Wednesday, August 23, 2017

Critical YouTube video did not infringe filmmaker’s copyrights

By Mark Engstrom, J.D.

A YouTube filmmaker could not proceed with copyright and defamation claims against individuals who had posted a YouTube video that criticized—and used short segments of—a "video skit" that the filmmaker had created, the federal district court in New York City has ruled. Because the defendants’ video constituted fair use, summary judgment of non-infringement was warranted. In addition, summary judgment in favor of the defendants was warranted on the plaintiff’s defamation and Digital Millennium Copyright Act (DMCA) claims because the commentary at issue was either non-actionable opinion or substantially true as a matter of law (Hosseinzadeh v. Klein, August 23, 2017, Forrest, K.).

Plaintiff Matt Hosseinzadeh created a YouTube "video skit" titled "Bold Guy vs. Parkour Girl" (the "Hoss video"), in which the "Bold Guy" flirts with a woman and chases her throughout various sequences. Defendants Ethan and Hila Klein posted a critical video that responded to the video skit. The 14-minute video—titled "The Big, The BOLD, The Beautiful" (the Klein video")—was harshly critical of the plaintiff’s work. According to the court, the defendants’ video interspersed short segments of the Hoss video with long segments of the Kleins’ commentary. In total, the defendants had used 3 minutes and 15 seconds of the Hoss video, which was 5 minutes and 24 seconds long.

The plaintiff sent YouTube a DMCA takedown notice for the Klein video, and YouTube removed the Klein video from its website. The defendants submitted a counter notification to challenge the takedown on the ground that the Klein video constituted fair and noncommercial use. Thereafter, the plaintiff sued the defendants. Both parties sought summary judgment.

Copyright infringement. The defendants asserted the affirmative defense of fair use. The court noted that, to determine whether a particular "use" of copyrighted material was excused by the fair use doctrine, courts considered four non-exhaustive factors: (1) the purpose and character of the asserted use, including its commercial or non-commercial nature and its profit, non-profit, and educational purposes; (2) the nature of the copyrighted work; (3) the amount and substantiality of the portion of the protected work that was actually used, in relation to the work as a whole; and (4) the effect of the asserted use on the potential market for, or value of, the copyrighted work.

The first fair-use factor—the purpose and character of the asserted use—weighed "heavily" in the defendants’ favor, according to the court. Significantly, criticism and comment were "classic examples" of fair use, and the Klein video was "quintessential criticism and comment" on the Hoss video.

The second factor—the nature of the copyrighted work—weighed against fair use. The Hoss video was a creative work, the court explained, not a factual one. Significantly, the Hoss video was "entirely scripted and fictional," even though the plaintiff had used personal experiences as material for his "Bold Guy" character. If creative works were deemed nonfiction whenever an author relied on his or her experiences, the court noted, "the fiction genre would be defined almost entirely out of existence."

The third factor examined the amount and substantiality of the portion of the copyrighted work that was actually used by the defendant. It considered: (1) the proportion of the copyrighted work that was used by the allegedly infringing work and (2) how well-tailored that use was to the proper purpose of the allegedly infringing work, irrespective of its size or length.

In the court’s view, the "extent" and "quality and importance" of the defendants’ video clips were "reasonable" attempts to accomplish the transformative purpose of critical commentary. The third factor was therefore neutral. The court acknowledged that a great deal of the plaintiff’s work was copied, but it also acknowledged that the defendants’ copying was "plainly necessary to the commentary and critique."

The fourth factor—the commercial effect of the allegedly infringing work on the subsequent demand for the work that was infringed—also favored the defendants. Significantly, the Klein video was not a "market substitute" for the Hoss video, and anyone seeking to enjoy the Hoss video on its own would undergo a "very different experience" while watching the Klein video. According to the court, the Klein video responded to and "transform[ed] the Hoss video from a skit into fodder for caustic, moment-by-moment commentary and mockery." Because the Klein video did not offer a substitute for the original video, it could not "usurp a market that properly belongs to the copyright-holder."

Weighing the four fair-use factors, the court found the Klein video constituted fair use, and thus concluded that the defendants had not infringed the plaintiff’s copyrights.

DMCA. The plaintiff alleged that the defendants had made misrepresentations in their DMCA counter-notification by challenging the plaintiff’s takedown notice on the ground that the Klein video constituted non-commercial fair use. Because the court had already ruled that the Klein video constituted fair use, it also ruled that the defendants’ "factually accurate statement" could not be a "misrepresentation" under the DMCA.

Defamation. Because the challenged statements of the defendants were either non-actionable opinions or substantially true as a matter of law, the plaintiff’s defamation claims were not viable.

The case is No. 16-cv-3081 (KBF).

Attorneys: Tim Bukher (Thompson Bukher LLP) for Matt Hosseinzadeh. Caroline Ann Morgan (Fox Rothschild, Attorneys at Law) for Ethan Klein.

MainStory: TopStory Copyright TechnologyInternet NewYorkNews

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