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Criticism can be insulting but it is not copyright infringement

This action principally concerns whether critical commentary on a creative video posted on YouTube constitutes copyright infringement. Matt Hosseinzadeh filed action in response to a video created by Ethan and Hila Klein, in which they comment on and criticize Hosseinzadeh’s copyrighted video. The Kleins’ criticism and commentary is interwoven with clips from the Hoss video.

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. It is also clear that defendants’ comments regarding the lawsuit are either non-actionable opinions or substantially true as a matter of law. Plaintiff is a filmmaker who posts original video content on YouTube. 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. The allegedly infringed work at issue 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.

Defendants also disseminate their work through YouTube. On February 15, 2016, defendants posted a video titled “The Big, The BOLD, The Beautiful” (the “Klein video”) on YouTube. In this video, defendants comment on and criticize the Hoss video, playing portions of it in the process. 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.

On 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, action was filed.

The court considered whether the allegedly infringing work serves as a “market substitute” for the allegedly infringed work, not merely whether the market for the allegedly infringed work was harmed. Critical parodies may legitimately aim at harming the market for a copyrighted work; “a lethal parody, like a scathing theater review, kills demand for the original but does not produce a harm cognizable under the Copyright Act. If the secondary work harms the market for the original through criticism or parody, rather than by offering a market substitute for the original that supersedes it, it does not produce a harm cognizable under the Copyright Act. “To the extent that the copying damages a work’s marketability by parodying it or criticizing it, the fair use finding is unaffected. Accordingly, “the role of the courts is to distinguish between biting criticism that merely suppresses demand and copyright infringement, which usurps it.”

A copyright holder is not liable for misrepresentation under the DMCA if they subjectively believe the identified material infringes their copyright, even if that belief is ultimately mistaken. The same subjective standard should apply to the “good faith belief” requirement for counter notifications. If the same standard did not apply, creators of allegedly infringing work would face a disparate and inequitable burden in appealing an online service provider’s decision to remove or disable access to their work.

The Court’s review of the Klein and Hoss videos made it clear that claim, in which plaintiff alleged that defendants infringed plaintiff’s copyrights, must be decided in defendants’ favor. The first fair use factor – and the most important – weighs heavily in defendants’ favor. “Criticism” and “comment” are classic examples of fair use. Irrespective of whether one finds it necessary, accurate, or well-executed, the Klein video is nonetheless criticism and commentary on the Hoss video. Since the Hoss video is a creative work, the second factor weighs against a finding of fair use. The “extent” and “quality and importance” of the video clips used by defendants were reasonable to accomplish the transformative purpose of critical commentary. This factor is therefore neutral – a great deal of plaintiff’s work was copied, but such copying was plainly necessary to the commentary and critique.

The fourth factor – the commercial impact the allegedly infringing work has or had on demand for the Hoss video – also weighs in favor of defendants. The purpose of the fourth factor is to determine to what degree an allegedly infringing work “usurps” demand for the copyrighted work, thereby resulting in a loss for the infringee or unjust enrichment for the infringer.