United States District Court, S.D. New York
OPINION & ORDER
KATHERINE B. FORREST, DISTRICT JUDGE.
action principally concerns whether critical commentary on a
creative video posted on YouTube constitutes copyright
infringement. Matt Hosseinzadeh (“plaintiff”)
filed this action in response to a video (the “Klein
video”) created by Ethan and Hila Klein
(“defendants”) and in which they comment on and
criticize plaintiff's copyrighted video (the “Hoss
video”). (ECF No. 1.) The Kleins' criticism and
commentary is interwoven with clips from the Hoss video. The
operative complaint alleges that defendants infringed
plaintiff's copyrights, made misrepresentations in a
counter-takedown notice in violation of the Digital
Millennium Copyright Act, 17 U.S.C. § 512(g)(3), and
defamed plaintiff. (ECF No. 26.)
the Court are dueling motions for summary judgment. (ECF Nos.
82, 86.) The key evidence in the record consists of the Klein
and Hoss videos themselves. Any review of the Klein video
leaves no doubt that it constitutes critical commentary of
the Hoss video; there is also no doubt that the Klein video
is decidedly not a market substitute for the Hoss video. For
these and the other reasons set forth below, defendants'
use of clips from the Hoss video constitutes fair use as a
matter of law. Further, it is clear that defendants'
comments regarding the lawsuit are either non-actionable
opinions or substantially true as a matter of law. For these
and the other reasons set forth below, plaintiff's
defamation claim fails. Defendants' motion for summary
judgment is therefore GRANTED, and plaintiff's motion is
following facts are taken from the parties' submissions
under Rule 56.1 and are undisputed unless otherwise noted.
is a filmmaker who posts original video content on YouTube.
(Plaintiff's Rule 56.1 Counterstatement of Undisputed
Material Fact (“Pl. 56.1”), ECF No. 101 ¶
2.) He has written and performed in a collection of short
video skits portraying encounters between a fictional
character known as “Bold Guy, ” played by
plaintiff, and various women whom Bold Guy meets and pursues.
(See id. ¶ 3.) The allegedly infringed work at
issue here is a video skit titled “Bold Guy vs. Parkour
Girl, ” (the “Hoss video”) in which the
Bold Guy flirts with a woman and chases her through various
sequences. (ECF No. 84-1 Ex. 1.)
also disseminate their work through YouTube. (ECF No. 101
¶ 19.) On February 15, 2016, defendants posted a video
titled “The Big, The BOLD, The Beautiful” (the
“Klein video”) on YouTube. (ECF No. 84-1 Ex. 2.)
In this video, defendants comment on and criticize the Hoss
video, playing portions of it in the process. (ECF No. 101
¶ 31.) The Klein video opens with commentary and
discussion between Ethan and Hila Klein, followed by segments
of the Hoss video which they play, stop, and continue to
comment on and criticize. The Klein video, which is almost
fourteen minutes long, intersperses relatively short segments
of the Hoss video with long segments of the Kleins'
commentary, ultimately using three minutes and fifteen
seconds of the five minute, twenty-four second long Hoss
video. (Id.) The Klein video is harshly critical of
the Hoss video, and includes mockery of plaintiff's
performance and what the defendants consider unrealistic
dialog and plotlines. (Id.; ECF No. 84-1 Ex. 2.) In
addition, defendants' commentary refers to the Hoss video
as quasi-pornographic and reminiscent of a
“Cringetube” genre of YouTube video known for
“cringe”-worthy sexual content. (ECF No. 84-1 Ex.
2.) As critical as it is, the Klein video is roughly
equivalent to the kind of commentary and criticism of a
creative work that might occur in a film studies class.
April 23, 2016, plaintiff submitted a DMCA takedown
notification to YouTube regarding the Klein video; YouTube
took down the Klein video the same day. Defendants submitted
a DMCA counter notification challenging the takedown on the
basis that the Klein video was, inter alia, fair use
and noncommercial. Three days later, this action was filed.
24, 2016, defendants posted a new video on YouTube titled
“We're Being Sued, ” (the “Lawsuit
video”), which discussed this action and criticized
plaintiff for filing it. (ECF No. 84-1 Ex. 3.) In response,
plaintiff amended his complaint to include a defamation
claim. Following a period of discovery, both parties have now
moved for summary judgment.
judgment may be granted when a movant shows, based on
admissible evidence in the record, “that there is no
genuine dispute as to any material fact and the movant is
entitled to judgment as a matter of law.” Fed.R.Civ.P.
56(a). The moving party bears the burden of demonstrating
“the absence of a genuine issue of material
fact.” Celotex Corp. v. Catrett, 477 U.S. 317,
323 (1986). In reviewing a motion for summary judgment, the
Court construes all evidence in the light most favorable to
the nonmoving party, and draws all inferences and resolves
all ambiguities in its favor. Dickerson v.
Napolitano, 604 F.3d 732, 740 (2d Cir. 2010). The
Court's role is to determine whether there are any
triable issues of material fact, not to weigh the evidence or
resolve any factual disputes. Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 248-49 (1986).
use is an affirmative defense to copyright infringement. It
“is a judicially created doctrine . . . first
explicitly recognized in statute in the Copyright Act of
1976.” On Davis v. Gap, Inc., 246 F.3d 152,
173 (2d Cir. 2001). In determining whether “the use of
a work in any particular case” is fair use, courts must
consider non-exhaustive factors:
(1) the purpose and character of the use, including whether
such use is of a commercial nature or is for nonprofit
(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. No single factor is categorically
determinative in this “open-ended and context-sensitive
inquiry.” Blanch v. Koons, 467 F.3d 244, 251
(2d Cir. 2006). The task of determining fair use “is
not to be simplified with bright-line rules, for the statute
. . . calls for case-by-case analysis.” Id.
(quoting Campbell v. Acuff-RoseMusic,
Inc., 510 U.S. 569, 577 (1994)). The Second Circuit has
held that when the material facts in the record are
undisputed, the fair use factors are properly considered as a
matter of law and therefore may be decided on motion for
summary judgment. See Maxtone-Graham v. Burtchaell,
803 F.2d 1253, 1257-59 (2d Cir. 1986); see also
Blanch, 467 F.3d at 250 (“Although fair use is a
mixed question of law and fact, this court has on a number of
occasions resolved fair use determinations at the summary
judgment stage where . . . there are no genuine issues of