DOCUMENT ELECTRONICALLY FILE (DOC # ee wn □□□□□ UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK
No. 17-cv-6493 (RJS)
AKILAH HUGHES, Plaintiff, VERSUS CARL BENJAMIN a/k/a Sargon of Akkad, John Does /—10 inclusive, Defendants.
OPINION AND ORDER February 3, 2020
RICHARD J. SULLIVAN, Circuit Judge: Plaintiff Akilah Hughes brings this dismiss the Complaint in its entirety. (Doc. action against Defendant Carl Benjamin and No. 30.) For the reasons set forth below, the ten “John Doe” Defendants for copyright motion to dismiss is GRANTED. infringement under 17 U.S.C. §501 and misrepresentation under the Digital I. BACKGROUND Milleaman. Cop yrigh t we at | Dil ), V7 A. The Original Work: We Thought She U.S.C. § 512(f), principally alleging that Would Win Benjamin’s YouTube video, SJW Levels of Awareness, unlawfully copied Hughes’s Hughes is a popular “content creator” YouTube video about the 2016 presidential and filmmaker who maintains the YouTube election, We Thought She Would Win. Now before the Court is Benjamin’s motion to
channel “Akilah Obviously.”! (Doc. No. 1 it started out as a very exciting evening and (“Compl.”) § 12.) Her work “covers a broad like full of hope” before the mood “just like range of topics[,] including comedy, race, crept down, until forever.” (id. at 0:47— social commentary, feminism, beauty, and 1:20; see id. at 1:20-4:38.) The final five fashion.” (/d.) minutes of the video consist of wide-ranging commentary, including Hughes urging her On November 8, 2016, the night of the audience to “stand up” before violence is 2016 presidential election, Hughes filmed committed against minorities, her negative Hillary Clinton’s campaign party at the feelings toward the year 2016, and her Jacob Javitz Convention Center in gratitude for being “surrounded by like- Manhattan. (ld. §/15.) Ten days later, minded people” in New York City. (id. at Hughes posted a nine-minute-and-fifty- 4:38-9:50.) Hughes alleges that she is the second video titled We Thought She Would sole owner of the video, and that it is Win to her YouTube channel. (dd. { 16; registered with the United States Copyright Doc. No. 32, Ex. A (“Hughes Video”).) The Office. (Compl. J 18.) video contained her campaign party footage, as well as her thoughts on the night’s events B. The Allegedly Infringing Work: SJW (both during the night and after the night Levels of Awareness was over), including commentary on the oo implications of Secretary Clinton’s defeat by Benjamin, like Hughes, is a content now-President Donald Trump. (Compl. creator and filmmaker who maintains the 16; Hughes Video.) The video begins with YouTube channels “Sargon of Akkad” and Hughes at the Javitz Center, early in the “The Thinkery,” where he publishes “anti- night, stating that she is “really excited to be ideological and anti-identitarian” content a woman in the year 2016 after focusing on ““‘the left’, racism, feminism, having ...a black president for eight years Black Lives Matter[], and Islam.” (Id. ¥ 34.) and now we have Hillary who could Benjamin is “publicly known for his potentially be our next president.” (Hughes provocative style and strongly-held beliefs Video at 0:29-0:40.) The video then cuts to against liberal social and political stances.” Hughes reflecting back on election night (Ud. 735.) Secretary Clinton’s loss, noting that The day after publishing We Thought no one thought she wasn't going to win, so She Would Win, Hughes discovered that $$ Benjamin had posted the video S/W Levels Tn ruling on the motion to dismiss, the Court has of Awareness, comprised entirely of six clips considered the Complaint, the YouTube counter of We Thought She Would Win totaling one notification attached as Exhibit A to the Complaint, : ‘ : and the original and allegedly infringing videos at minute and ity-eight seconds, to one of his issue (authentic copies of which were submitted to YouTube Channels. Ud. 420; Doc. No. the Court (Doc. No. 32, Exs. A and C)), which are Oo incorporated by reference into the Complaint (Doc. 2? The Complaint alleges that SJW Levels of No. | §9 17, 20). See McCarthy v. Dun & Bradstreet Awareness copied one minute and twenty-eight Corp., 482 F.3d 184, 191 (2d Cir. 2007); see alsa seconds from We Thought She Would Win (Compl. Peter F. Gaito. Architecture, LLC v. Simone Dev. 420), but a review of the work itself, which Corp., 602 F.3d 57, 64 (2d Cir. 2010) (“In copyright “supersede[s] and control[s] ... contrary allegations infringement actions, the works themselves supersede . . . contained in the pleadings,” Peter F. Gaito and control contrary descriptions of them, including Architecture, 602 F.3d at 64 (internal quotation any contrary allegations, conclusions or descriptions marks omitted), reveals that SJW Levels of of the works contained in the pleadings.” (internal Awareness copied thirty seconds more than alleged quotation marks and citations omitted)). (Doc. No. 32, Ex. C).
32, Ex. C (“Benjamin Video”).) According (Id. § 30; id. Ex. A.) Benjamin also stated, to the Complaint, “SJW” is an acronym for under penalty of perjury, that he had “a good “social justice warrior,’ a term “routinely faith belief [that SJW Levels of Awareness| used by Benjamin in a demeaning context to was removed due to a mistake or belittle proponents of perceived liberal misidentification of the material to be social policies and stances.” (Compl. § 20.) removed or disabled.” (/d. Ex. A.) Hughes SJW Levels of Awareness begins with alleges that YouTube relied upon Hughes expressing her excitement over the Benjamin’s counter notification “to reinstate potential election of a female president, certain features of their service, including followed by a clip depicting her subsequent allowing for the continued public display of disappointment over Secretary Clinton’s [SJW Levels of Awareness],” though she loss. (Benjamin Video at 0:00-0:50.) SJUW does not specify when YouTube reinstated Levels of Awareness then cuts to footage of access to Benjamin’s video. (Ud. 4 59.) Hughes stating that Trump supporters mean to divide the country, urging people to speak D. Procedural History Gut against bigotry,,.and observing thet. 2000 Hughes initiated this action for damages is the worst year of her life. (Ud. at 0:50— d injunctive relief on August 25, 2017 1:48.) The video concludes with Hughes tk ee 6 ° ‘ os ck er Complaint sets forth two causes of declaring her appreciation for living with fon, ‘Bie dhe asses. th Beaten like-minded people in New York City. Ud. geno” ; infringed on her copyright of We Thought at 1:49-1:58.) SW’ Levels ar Swat enONE She Would Win through his public posting of includes no commentary or video recorded SJW Levels of Awareness on YouTube and by Benjamin. (Benjamin Video; Compl. act ings uJ J □ P Twitter, in violation of 17 U.S.C. § 501. Ud. 22.) qq 45-54.) Second, she claims that C. The DMCA Takedown Request and Benjamin engaged in DMCA Counter Notification misrepresentation in violation of 17 U.S.C. § 512(f) by stating in his YouTube counter After discovering Benjamin’s video, notification that S/W Levels of Awareness Hughes submitted a “takedown notice” to was fair use, “entirely transformative,” and YouTube pursuant to 17 U.S.C. §512. “intended for parody.” (Ud. 55-63.) On (Compl. 424.) YouTube then disabled April 20, 2018, Benjamin filed a motion to public access to Benjamin’s video, (Ud. dismiss Hughes’s Complaint pursuant to 425.) On November 19, 2016, Benjamin Rule 12(b)(6) of the Federal Rules of Civil sent Hughes an email requesting that she Procedure on the ground that it failed to withdraw the takedown notice. (Id. 26.) state a claim upon which relief can be On November 22, 2016, after Hughes granted. (Doc. No. 31 at 4.) Hughes filed declined to withdraw her takedown notice, an opposition on May 18, 2018 (Doc. No. Benjamin sent YouTube a DMCA counter 35), and Benjamin filed a reply on May 30, notification claiming that SJW Levels of 2018 (Doc. No. 36). On June 7, 2019, Awareness was “entirely Benjamin submitted a one-page letter in transformative ... and intended for parody.” support of his motion to dismiss, apprising the Court of supplemental authority. (Doc. 3 On the same day, Benjamin also posted S/W Levels No. 37.) of Awareness to his Twitter account, where it remained publicly accessible until his account was suspended on August 9, 2017. (Compl. {J 28-29.)
IJ. LEGAL STANDARD Serv. Co., 499 U.S. 340, 361 (1991)). A defendant is deemed to have copied To survive a motion to dismiss pursuant constituent elements of the plaintiff's work to Rule 12(6)(6), a complaint must “provide where “(1) the defendant has actually copied the grounds upon which [the] claim rests.” the plaintiff's work; and (2) the copying is ATSI Comme'ns, Inc. v. Shaar F und, Ltd., illegal because a substantial similarity exists 493 F3d 87, 98 (2d Cir. 2007). between the defendant’s work and the Specifically, a plaintiff must allege “enough protectible elements of plaintiffs.” Hamil facts to state a claim to relief that is Am., Inc. v. GFT, 193 F.3d 92, 99 (2d Cir, plausible on its face.” Bell Atl. Corp. v. 1999) (quoting Knitwaves, Inc. v. Lollytogs Twombly, 550 U.S. 544, 570 (2007). “A Lid., 71 F.3d 996, 1002 (2d Cir. 1995). claim has facial plausibility when the “The defendant can defeat a prima facie plaintiff pleads factual content that allows showing of infringement,” however, “by the court to draw the reasonable inference proving that the doctrine of ‘fair use’ that the defendant is liable for the permits” his or her “employment of the misconduct alleged.” Ashcroft v. Iqbal, 556 plaintiff's [work].” Tufenkian Imp./Exp. US. 662, 678 (2009). In reviewing a Rule Ventures, Inc. v. Einstein Moomjy, Inc., 338 12(b)(6) motion to dismiss, a court must F.3d 127, 131 (2d Cir. 2003); see 17 U.S.C. accept as true all factual allegations in the § 107 (codifying the common-law fair use complaint and draw all reasonable defense). inferences in favor of the plaintiff. ATS/ Commce’ns, 493 F.3d at 98. However, that Although fair use is an affirmative tenet “is inapplicable to legal conclusions.” defense, and thus the defendant “bears the Iqbal, 556 U.S. at 678. Thus, a pleading that burden of proving it,’ Fox News Network, offers only “labels and conclusions” or “a LLC vy. Tveyes, Inc., 883 F.3d 169, 176 (2d formulaic recitation of the elements of a Cir. 2018), fair use can nevertheless be cause of action will not do.” Twombly, 550 adjudicated on a motion to dismiss, see TCA U.S. at 555. If the plaintiff “ha[s] not Television Corp. v. McCollum, 839 F.3d nudged [its] claims across the line from 168, 178 (2d Cir. 2016); Kelly-Brown vy. conceivable to plausible, [its] complaint Winfrey, 717 F.3d 295, 308 (2d Cir. 2013). must be dismissed.” Jd. at 570. At this stage of the litigation, the Court’s task is to determine whether “the facts III. DISCUSSION necessary to establish the defense are The Court will address Hughes’s claims evident on the face of the senaplali, of copyright infringement and DMCA tirotbcing any ental | properly misrepresentation in tum. incorporated into the complaint. Kelly- Brown, 717 F.3d at 308; see also, e.g., Clark A. Copyright Infringement v. Transp. Alts., Inc., No. 18-cv-9985 (VM), 2019 WL 1448448, at *2—5 (S.D.N.Y. Mar. “To establish a prima facie case of 18, 2019) (dismissing complaint pursuant to copyright infringement, a plaintiff must Rule 12(b)(6) based on fair use defense after demonstrate ‘(1) ownership of a_ valid conducting a side-by-side analysis of the copyright, and (2) copying of constituent two works attached to the complaint). elements of the work that are original.’” Warner Bros. Entm’t Inc. v. RDR Books, In undertaking a fair use analysis, the 575 F. Supp. 2d 513, 533 (S.D.N.Y. 2008) Court considers the following non- (quoting Feist Publ’ns, Inc. v. Rural Tel.
exhaustive list of factors set forth in 17 “criticism, comment, news reporting, U.S.C. § 107: teaching, scholarship, and research” as illustrative purposes of a fair use. 17 U.S.C. (1) the purpose and character of the § 107; see TCA Television, 839 F.3d at 179. use, including whether such use is of Additionally, the commercial use of the new a commercial nature or is for work “may weigh against a finding of fair nonprofit educational purposes; use,” which favors non-profit educational . ‘ urposes. Cariou, 714 F.3d at 708 (quoting 2) the AGS “GL is □□□ peEsIe Campbell, 510 U.S. at 579). But because work; . . : “nearly all of the illustrative uses listed in (3) the amount and substantiality of the preamble paragraph of § 107... □□□ the portion used in relation to the generally conducted for profit in this copyrighted work as a whole; and country,” Campbell, 510 U.S. at 584 (internal quotation marks omitted), courts (4) the effect of the use upon the “do not give much weight to the fact that the potential market for or value of the secondary use was for commercial gain,” copyrighted work. Castle Rock Entm’t, 150 F.3d at 142. . Instead, the critical question when applying AS the Second Circuit has explained, the first fair use factor is whether the new the four listed statutory factors in 8 107 work is “transformative.” TCA Television, guide but do not control [the] fair use 839 F.3d at 180. Like the overall fair use analysis and ‘are to be explored, and the determination, whether a work is results weighed together, in light of the “transformative” is “an open-ended and Purposes of copyright. , Castle Rock context-sensitive inquiry,” Cariou, 714 F.3d Entm't, Inc. v. Carol P ubl g Grp., Inc., 150 at 705, based on “how the work in question F.3d 132, 141 @d Cir. 1998) (quoting appears to the reasonable observer,” id. at Campbell v. Acuff-Rose Music, Inc. 510 707. “[T]he critical inquiry is whether the US. 369, a14-78 (1994). The ulningis new work uses the copyrighted material HUeSHOD. 28 whether the copyright law 5 itself for a purpose, or imbues it with a goal of ‘promoting the Progress of Science character, different from that for which it and ‘setl Arts’. . . Would be hitter setved was created.” TCA Television, 839 F.3d at by allowing the use than by preventing it.” 180. Cariou v. Prince, 714 F.3d 694, 705 (2d Cir. 2013) (quoting Castle Rock Entm’t, 150 Most relevant here, a new work may be F.3d at 141). transformative even where it consists . . entirely of portions of the original work, or The Court will consider each of the tadead. even: wher # i ai “emact above statutory factors. replication” of the original work. Sarl Louis 1. Purpose and Character of Use Feraud Int’l v. Viewfinder Inc., 627 F. Supp. 2d 123, 128 (S.D.N.Y. 2008) (Lynch, J.) The first factor, “[t]he heart of the fair (collecting cases); see also Swatch Grp. use inquiry,” concerns the purpose and Mgmt. Servs. Ltd. v. Bloomberg L.P., 756 character of the allegedly infringing use. F.3d 73, 84 (2d Cir. 2014) (“[A] secondary Blanch v. Koons, 467 F.3d 244, 251 (2d Cir. work can be transformative in function or 2006) (quoting Davis v. The Gap, Inc., 246 purpose without altering or actually adding F.3d 152, 174 (2d Cir. 2001)). In the to the original work.” (internal quotation preamble to §107, Congress identified marks omitted)). In Baraban vy. Time
Warner, Inc., for example, the court found term for “[a] person who expresses or that the first statutory fair use factor promotes socially progressive views”); “weigh[ed] heavily in favor of fair use” Laura Wagner, Can You Use That In A where the defendant had “copie[d] the Sentence? Dictionary Adds New Words, [plaintiff's] photo outright in order to NPR: The Two-Way (Aug. 7, 2015, 4:08 comment on it and on the . . . advertising PM), https://www.npr.org/sections/thetwo- campaign in which the photo played an way/2015/08/27/435232388/can-you-use- integral part.” No. 99-cv-1569 (JSM), 2000 that-in-a-sentence-dictionary-adds-new- WL 358375, at *3-4 (S.D.N.Y. Apr. 6, words; Abby Ohlheiser, Why ‘Social Justice 2000). The court noted that the defendant’s Warrior,’ a Gamergate Insult, Is Now a use of the photo was not exactly “parody Dictionary Entry, Wash. Post (Oct. 7, 2015, [Jor satire as those terms have been defined 7:00 AM), https:// in the case law,” but that the defendant’s use www. washingtonpost.com/news/the- of the photo in context — as part of a book intersect/wp/2015/10/07/why-social-justice- containing critical commentary — watrior-a-gamergate-insult-is-now-a- nevertheless “clearly [fell] within the dictionary-entry; see also Nix v. Hedden, permissible use categories of ‘comment’ and 149 U.S. 304, 307 (1893) (explaining that ‘criticism.’” Id. at *3; see also, e.g., Yang v. “dictionaries are admitted, not as evidence, Mic Network, Inc., 405 F. Supp. 3d 537, but only as aids to the . . . understanding of 543-45 (S.D.N.Y. 2019) (similar) the court”).4 And “levels of awareness” is (collecting cases). plainly used in a sarcastic manner when □ combined with “SJW,” implying a lack of Here, it is clear from the face of awareness concerning social or political Hughes’s Complaint that Benjamin copied matiers, portions of We Thought She Would Win for the transformative purposes of criticism and Moreover, the critical nature of SJW commentary. Beginning with the title of Levels of Awareness is apparent from the Benjamin’s work, SJW Levels of Awareness, broader context of Benjamin’s YouTube Hughes herself acknowledges that “SJW” or channel, where it was posted. See Cariou, “social justice warrior” is a term “routinely 714 F.3d at 705; see also, e.g., BWP Media used by Benjamin in a demeaning context to USA, Inc. v. Gossip Cop Media, LLC, 87 F. belittle proponents of perceived liberal Supp. 3d 499, 507 (S.D.N.Y. 2015) (finding social policies and stances.” (Compl. { 20.) the use of copied photographs Although Hughes contends that her own transformative based on the surrounding subjective awareness of the term’s meaning context in which they were published). As does not establish that a “reasonable the Complaint alleges, Benjamin “routinely observer” would interpret the term “SJW” in Se ee oe Bt The Court takes judicial notice of the news articles : : (which report on the Lexico dictionary entry) for the Justice Warrior” has sufficiently entered the “fact of their publication,” since the articles predate modern lexicon such that there can be no Benjamin’s posting of SJW Levels of Awareness and serious dispute as to its pejorative meaning thus show that SJW was in a dictionary as a in this context. See, e.g., Oxford Univ. derogatory term at that time. In re Merrill Lynch & Press, social justice warrior, Lexico Co., Inc. Research Reports Sec. Litig., 289 F. Supp. TOE, AGRI, 2d 416, 425 n.15 (S.D.N.Y. 2003) (“The Court may https://www.lexico.com/definition/social_ju take judicial notice of newspaper articles for the fact stice warrior (last updated 2019) (defining of their publication without transforming the motion “social justice warrior” as a “derogatory” into one for summary judgment.”).
engages and criticizes viewpoints on various SJW Levels of Awareness. At most, the social and political issues” on his YouTube Complaint alleges generally that channels, specifically targeting topics such “Defendants have unfairly derived profits as feminism, “the left,’ and Black Lives from [SUW Levels of Awareness| in the form Matter. (Compl. 34.) Thus, whether S/W of advertising revenues generated from its Levels of Awareness is accessed by upload to and availability on YouTube,” and searching for “SJW”-related content on “from increased popularity of their YouTube YouTube or by going directly to Benjamin’s channel attributed to [S/W Levels of YouTube channel (or in some other way), a Awareness.” (Compl. 44.) The reasonable observer who came across the Complaint, however, does not specify how video would quickly grasp its critical the increased popularity of Benjamin’s purpose. YouTube channel commercially benefited Benjamin himself, nor does the Complaint Furthermore, although courts have found indicate whether the referenced advertising transformative uses even in cases involving revenues accrued to Benjamin or to exact copying, the Court notes that SJW YouTube. In any event, insofar as there is a Levels of Awareness is not an exact copy of commercial aspect to SJW Levels of We Thought She Would Win. Rather, Awareness, it pales in significance to the Benjamin excerpted We Thought She Would considerations discussed above. See, □□□□□ Win to depict the specific moments he felt Cariou, 714 F.3d at 708 (“Although there is exemplified Hughes’s political identity and no question that [the defendant’s] artworks lack of awareness. For example, Benjamin are commercial, we do not place much included Hughes’s prediction and hope that significance on that fact due to the Secretary Clinton would win the election, transformative nature of the work.”). while omitting footage that did not support his message, like Hughes’s statement that Because a reasonable observer would Secretary Clinton won the popular vote with plainly infer from the title of Benjamin’s “record numbers.” And he excluded content video, the context in which it was posted, unrelated to his criticism, like Hughes’s and its selective copying, that it was commentary on the societal benefits of intended to criticize Hughes and comment YouTube. In this way, Benjamin excerpted on her perceived lack of awareness, the first We Thought She Would Win to maximize his fair use factor favors Benjamin. criticism of Hughes’s liberal viewpoint.° 2. The Nature of the Copyrighted Work Finally, although the commercial nature of an allegedly infringing work is not The second fair use factor, the nature of necessarily a significant factor, see, e.g, the copyrighted work, “calls for recognition Cariou, 714 F.3d at 708, the Court notes that that Some works are closer to the core of the Complaint barely mentions the intended copyright protection than others,” commercial or non-commercial nature of like works intended for “creative expression for public dissemination.” Campbell, 510 > To the extent Benjamin’s selective excerpting was US. at 586. Applying this factor, courts not “fair” to Hughes in the colloquial sense of consider “(1) whether the [copyrighted] accurately conveying her level of awareness, courts work is expressive or creative, ... with a will not, except in rare circumstances, reject a fair use greater leeway being allowed to a claim of defense based on the inaccuracy of a critical work. fair use where the work is factual or Oh are Oe I on ABST TAS Fe SUD: informational, and (2) whether the work is
published or unpublished, with the scope for (quoting 17 U.S.C. § 107). In assessing this fair use involving unpublished works being factor, the Court considers “not only ‘the considerably narrower.” Blanch, 467 F.3d quantity of the materials used’ but also ‘their at 256 (quoting 2 Howard B. Abrams, The quality and importance.’” TCA Television, Law of Copyright, § 15:52 (2006)). The 839 F.3d at 185 (quoting Campbell, 510 second fair use factor, however, “may be of U.S. at 587). “The crux of the inquiry is limited usefulness where the creative work whether ‘no more [content] was taken than of art is being used for a transformative necessary,’” given the purpose and character purpose.” Bill Graham Archives v. Dorling of the allegedly infringing use. Authors Kindersley Ltd., 448 F.3d 605, 612 (2d Cir. Guild, Inc. v. HathiTrust, 755 F.3d 87, 98 2006); see also Campbell, 510 US. at 586 (2d Cir. 2014) (quoting Campbell, 510 U.S. (explaining that the nature of the at 589); see also Bill Graham Archives, 448 copyrighted work is “not much help ... in F.3d at 613 (“[T]he third-factor inquiry must separating the fair use sheep from the take into account that... the extent of infringing goats in a parody case, since permissible copying varies with the purpose parodies almost invariably copy publicly and character of the use.” (internal quotation known, expressive works”). marks omitted)). Thus, the third factor may □ favor the defendant even where the Here, the second fair use factor is defendant copies an entire work, provided essentially neutral and of little import. As that such copying was reasonably necessary for the first Blanch consideration, Hughes’s i yalation te the worles tanetoemative work is “factual or informational” in that it purpose. See, e.g., Authors Guild, 755 F.3d provides a first-hand account of a at 98-99; see also, e.g., Swatch Grp. Mgmt. newsworthy event, but it also has Servs., 756 F.3d at 90 (concluding that the expressive or creative” value in both its third fair use factor was neutral where an commentary and production. Blanch, 467 entire work was copied). F.3d at 256 (internal quotation marks omitted). With respect to the second Blanch Here, SUW Levels of Awareness copied consideration, We Thought She Would Win 20% of We Thought She Would Win, a is a published work, and thus the scope of percentage which, while greater than that fair use in this context is not “considerably found unreasonable in some cases in this narrower” than it would be if it had been Circuit, see Robinson v. Random House, unpublished. Jd. (internal quotation marks Inc., 877 F. Supp. 830, 842 (S.D.N.Y. 1995) omitted). Given these countervailing (collecting cases), was still far less than the considerations, and the fact that SJW Levels entire video, see, e.g., Authors Guild, 755 of Awareness is plainly transformative, the F.3d at 98. In addition, although the second fair use factor has little impact here. selected excerpts were important to Hughes’s video (at least as important as any 3. Amount and Substantiality of the Portion other part of her video), they were also Used linked to the critical purpose of SJW Levels The third statutory fair use factor turns of Awareness. As noted above, Peaianan □□ did not copy parts of Hughes’s video that on “whether ‘the amount and substantiality 5 □ : : undermined or were unrelated to the critical of the portion used in relation to the . purpose of SJW Levels of Awareness. copyrighted work as □ whole’... [is] . 5 . Notably, Benjamin also did not copy every reasonable in relation to the purpose of the . 45 part of We Thought She Would Win that copying. Campbell, 510 U.S. at 586 : evinced Hughes’s progressive views.
Rather, Benjamin copied as much of We factor (nature of the copyrighted work) is Thought She Would Win as was deemed neutral, the Court concludes that the fair use reasonably necessary for him to convey his defense clearly applies based on the face of critical message. In these circumstances, the Hughes’s Complaint and a review of the © third factor tips in favor of Benjamin. videos themselves. Accordingly, Hughes has failed to state a claim of copyright 4, The Effect on the Potential Market for infringement for purposes of Rule 12(b)(6). the Copyrighted Work B. DMCA Misrepresentation The fourth fair use factor concerns “whether the secondary use usurps the The DMCA allows online service market of the original work.” Blanch, 467 providers to avoid copyright liability if they F.3d at 258 (quoting NXIVM Corp. v. Ross comply with the procedures set forth in 17 Inst., 364 F.3d 471, 482 (2d Cir. 2004)). A U.S.C. §512. See Lenz v. Universal Music defendant usurps the original work’s market Corp., 815 F.3d 1145, 1151 (9th Cir. 2016). when “the infringer’s target audience and Specifically, a service provider may avail the nature of the infringing content is the itself of the safe harbor provisions in Section same as the original.” Cariou, 714 F.3d at 512 by “expeditiously” disabling access to 709. Thus, “[t]he more transformative the allegedly infringing material upon receipt of secondary use, the less [the] likelihood that a so-called “takedown notice.” 17 U.S.C. the secondary use substitutes for the § 512(c)(1)(C). A copyright owner who original.” Castle Rock Entm’t, 150 F.3d at submits a takedown notice must include a 145. statement, under penalty of perjury, that she has “a good faith belief that use of the Here, there is no danger that SJW Levels material in the manner complained of is not of Awareness will usurp the market of authorized by the copyright owner.” Id. progressive commentaries such as We § 512(c)(3)(A)(v)-(vi). In response, the Thought She Would Win. Benjamin’s target creator of the allegedly infringing work may audience (generally political conservatives file a “counter notification,” in which the and libertarians) is obviously not the same alleged infringer must attest “under penalty as Hughes’s target audience (generally of perjury that the subscriber has a good political liberals). See Cariou, 714 F.3d at faith belief that the material was removed or 709. Moreover, although SJW Levels of disabled as a result of mistake or Awareness is comprised entirely of portions misidentifieation of the rmeferial fo be of We Thought She Would Win, there is no removed or disabled.” Jd § 512(g)(3)(C). reason to think that Hughes’s audience will Upon receipt of the counter notification, the abandon her progressive YouTube channel service provider can again avoid liability by to watch the derisively-titled SIW Levels of restoring access to the allegedly infringing Awareness on a conservative YouTube material in ten to fourteen business days. Jd. channel simply because it contains parts of § 512(g)(2)(C). However, “[a]ny person her work. Thus, the fourth fair use factor, who knowingly materially misrepresents like the first and third factors, favors under this section . . . that material or Benjamin. activity was removed or disabled by mistake Because three of the four statutory fair = gpieidleniTicalton” ie tbls ie ala MAES use factors favor Benjamin, including the including costs and attorney Ss fees, incurred . by the copyright holder “as the result of the most important factor (purpose and character of use), and the least important service provider relying upon such
misrepresentation in . . . replacing the Benjamin knowingly adopted one of these Pp y P removed material or ceasing to disable two characterizations over the other in an access to it.” fd. § 512(f). effort to mask his intentions. Because the . Complaint therefore does not plausibly Here, Hughes alleges that Benjamin allege that Benjamin made knowingly and materially misrepresented in misrepresentations in 3s His counter his counter notification that S/W Levels of notification, let alone knowing and material Awareness was fair use, “entirely misrepresentations, Hughes’s DMCA claim transformative,” and “intended for parody.” failia: (Compl. {| 30, 57-58; id Ex. A.) These allegations fall short. Benjamin’s implied IV. CONCLUSION statement that his video constituted fair use (the counter notification itself does not For the foregoing reasons, IT is actually use the term “fair use”) was HEREBY ORDERED THAT Benjamin's aecurate fee the. vensone stated in this motion to dismiss is GRANTED. Although Opinion and Order. As a court in this Hughes has not requested leave to amend district has explained, “[iJt is self-evident the Complaint, the Court notes that leave to that a statement cennot be a amend would be futile. The Court’s analysis ‘misrepresentation’ for purposes of 17 above is principally based on its review of U.S.C. § 512(f) if it is factually accurate,” the two works at issue and the context in Hosseinzadeh vy. Klein, 276 F. Supp. 3d 34, which they were posted, rather than any 47 (S.D.N.Y. 2017), and the same is of allegations that may be refined in amended course true for statements that are legally pleadings. Thus, the dismissal is with accurate. Similarly, Benjamin did not prejudice, and the Clerk of Court is misrepresent that his video was respectfully directed to terminate the motion “transformative.” Whether it was “entirely pending at document number 30 and close transformative,” as stated in his counter this case. notification, or merely “transformative,” is SO ORDERED immaterial as a legal matter. Cf Kshetrapal Dish Network, LLC, No. 14-cv-3527 (PAC), 2018 WL 1474375, at *15 (S.D.N.Y. HARD J. SULLIVAN Mar. 23, 2018) (explaining, in the United States Circuit Judge defamation context, that plaintiffs Sitting by Designation “exaggerat[ion|” was “mere hyperbole or a matter of opinion, and not false”). Last, the Complaint fails to plausibly plead a Dated: February 3, 2020 misrepresentation in the form of Benjamin’s New York, New York statement that S/W Levels of Awareness was “intended for parody.” (Compl. §] 58; id. Ex. ? A.) Even if SYW Levels of Awareness was □ 5 ‘ai sidelly pening cor ay as that tem Akilah Hughes is represented by Kristin has been defined in the case law, Baraban, Grant of Grant cxtaaneys a Law EGLO: a 3000 WL 358375. at *3. the difference Exchange Place, Suite 1306, New York, i ee : . : New York, 10005. between “parody” and non-parodic copying for the purpose of mocking criticism is Carl Benjamin is represented by Wesley subtle, and ultimately immaterial here. Mullen of Mullen P.C., 200 Park Avenue, Moreover, it is implausible to suggest that Suite 1700, New York, New York, 10166.