Case 1:16-cv-03081-KBF Document 116 Filed 08/23/17 Page 1 of 21
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`UNITED STATES DISTRICT COURT
`SOUTHERN DISTRICT OF NEW YORK
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`MATT HOSSEINZADEH,
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`Plaintiff,
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`-v-
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`ETHAN KLEIN and HILA KLEIN,
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`Defendants.
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`KATHERINE B. FORREST, District Judge:
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`USDC SDNY
`DOCUMENT
`ELECTRONICALLY FILED
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`DOC #: _________________
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`DATE FILED: August 23, 2017
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`16-cv-3081 (KBF)
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`OPINION & ORDER
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`This action principally concerns whether critical commentary on a creative
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`video posted on YouTube constitutes copyright infringement. Matt Hosseinzadeh
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`(“plaintiff”) filed this action in response to a video (the “Klein video”) created by
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`Ethan and Hila Klein (“defendants”) and in which they comment on and criticize
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`plaintiff’s copyrighted video (the “Hoss video”). (ECF No. 1.) The Kleins’ criticism
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`and commentary is interwoven with clips from the Hoss video. The operative
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`complaint alleges that defendants infringed plaintiff’s copyrights, made
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`misrepresentations in a counter-takedown notice in violation of the Digital
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`Millennium Copyright Act, 17 U.S.C. § 512(g)(3), and defamed plaintiff. (ECF No.
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`26.)
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`Before the Court are dueling motions for summary judgment. (ECF Nos. 82,
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`86.) The key evidence in the record consists of the Klein and Hoss videos
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`themselves. Any review of the Klein video leaves no doubt that it constitutes
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`critical commentary of the Hoss video; there is also no doubt that the Klein video is
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`decidedly not a market substitute for the Hoss video. For these and the other
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`reasons set forth below, defendants’ use of clips from the Hoss video constitutes fair
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`use as a matter of law. Further, it is clear that defendants’ comments regarding the
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`lawsuit are either non-actionable opinions or substantially true as a matter of law.
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`For these and the other reasons set forth below, plaintiff’s defamation claim fails.
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`Defendants’ motion for summary judgment is therefore GRANTED, and plaintiff’s
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`motion is DENIED.
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`I.
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`BACKGROUND
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`The following facts are taken from the parties’ submissions under Rule 56.1
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`and are undisputed unless otherwise noted.
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`Plaintiff is a filmmaker who posts original video content on YouTube.
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`(Plaintiff’s Rule 56.1 Counterstatement of Undisputed Material Fact (“Pl. 56.1”),
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`ECF No. 101 ¶ 2.) He has written and performed in a collection of short video skits
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`portraying encounters between a fictional character known as “Bold Guy,” played
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`by plaintiff, and various women whom Bold Guy meets and pursues. (See id. ¶ 3.)
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`The allegedly infringed work at issue here is a video skit titled “Bold Guy vs.
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`Parkour Girl,” (the “Hoss video”) in which the Bold Guy flirts with a woman and
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`chases her through various sequences. (ECF No. 84-1 Ex. 1.)
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`Defendants also disseminate their work through YouTube. (ECF No. 101 ¶
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`19.) On February 15, 2016, defendants posted a video titled “The Big, The BOLD,
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`The Beautiful” (the “Klein video”) on YouTube. (ECF No. 84-1 Ex. 2.) In this
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`video, defendants comment on and criticize the Hoss video, playing portions of it in
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`the process. (ECF No. 101 ¶ 31.) The Klein video opens with commentary and
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`discussion between Ethan and Hila Klein, followed by segments of the Hoss video
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`which they play, stop, and continue to comment on and criticize.1 The Klein video,
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`which is almost fourteen minutes long, intersperses relatively short segments of
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`the Hoss video with long segments of the Kleins’ commentary, ultimately using
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`three minutes and fifteen seconds of the five minute, twenty-four second long Hoss
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`video. (Id.) The Klein video is harshly critical of the Hoss video, and includes
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`mockery of plaintiff’s performance and what the defendants consider unrealistic
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`dialog and plotlines. (Id.; ECF No. 84-1 Ex. 2.) In addition, defendants’
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`commentary refers to the Hoss video as quasi-pornographic and reminiscent of a
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`“Cringetube” genre of YouTube video known for “cringe”-worthy sexual content.
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`(ECF No. 84-1 Ex. 2.) As critical as it is, the Klein video is roughly equivalent to
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`the kind of commentary and criticism of a creative work that might occur in a film
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`studies class.
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`On April 23, 2016, plaintiff submitted a DMCA takedown notification to
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`YouTube regarding the Klein video; YouTube took down the Klein video the same
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`day. Defendants submitted a DMCA counter notification challenging the takedown
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`1 The Klein video is arguably part of a large genre of YouTube videos commonly known as “reaction videos.”
`Videos within this genre vary widely in terms of purpose, structure, and the extent to which they rely on potentially
`copyrighted material. Some reaction videos, like the Klein video, intersperse short segments of another’s work with
`criticism and commentary, while others are more akin to a group viewing session without commentary.
`Accordingly, the Court is not ruling here that all “reaction videos” constitute fair use.
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`Case 1:16-cv-03081-KBF Document 116 Filed 08/23/17 Page 4 of 21
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`on the basis that the Klein video was, inter alia, fair use and noncommercial.
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`Three days later, this action was filed.
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`On May 24, 2016, defendants posted a new video on YouTube titled “We’re
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`Being Sued,” (the “Lawsuit video”), which discussed this action and criticized
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`plaintiff for filing it. (ECF No. 84-1 Ex. 3.) In response, plaintiff amended his
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`complaint to include a defamation claim. Following a period of discovery, both
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`parties have now moved for summary judgment.
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`II.
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`LEGAL PRINCIPLES
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`a. Summary judgment
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`Summary judgment may be granted when a movant shows, based on
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`admissible evidence in the record, “that there is no genuine dispute as to any
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`material fact and the movant is entitled to judgment as a matter of law.” Fed. R.
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`Civ. P. 56(a). The moving party bears the burden of demonstrating “the absence of
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`a genuine issue of material fact.” Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986).
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`In reviewing a motion for summary judgment, the Court construes all evidence in
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`the light most favorable to the nonmoving party, and draws all inferences and
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`resolves all ambiguities in its favor. Dickerson v. Napolitano, 604 F.3d 732, 740 (2d
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`Cir. 2010). The Court's role is to determine whether there are any triable issues of
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`material fact, not to weigh the evidence or resolve any factual disputes. Anderson v.
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`Liberty Lobby, Inc., 477 U.S. 242, 248-49 (1986).
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`b. Fair use
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`Fair use is an affirmative defense to copyright infringement. It “is a
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`judicially created doctrine . . . first explicitly recognized in statute in the Copyright
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`Act of 1976.” On Davis v. Gap, Inc., 246 F.3d 152, 173 (2d Cir. 2001). In
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`determining whether “the use of a work in any particular case” is fair use, courts
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`must consider non-exhaustive factors:
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`(1) the purpose and character of the use, including whether such use is of a
`commercial nature or is for nonprofit educational purposes;
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`(2) the nature of the copyrighted work;
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`(3) the amount and substantiality of the portion used in relation to the
`copyrighted work as a whole; and
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`(4) the effect of the use upon the potential market for or value of the
`copyrighted work.
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`17 U.S.C. § 107. No single factor is categorically determinative in this “open-ended
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`and context-sensitive inquiry.” Blanch v. Koons, 467 F.3d 244, 251 (2d Cir. 2006).
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`The task of determining fair use “is not to be simplified with bright-line rules, for
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`the statute . . . calls for case-by-case analysis.” Id. (quoting Campbell v. Acuff-Rose
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`Music, Inc., 510 U.S. 569, 577 (1994)). The Second Circuit has held that when the
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`material facts in the record are undisputed, the fair use factors are properly
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`considered as a matter of law and therefore may be decided on motion for summary
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`judgment. See Maxtone-Graham v. Burtchaell, 803 F.2d 1253, 1257-59 (2d Cir.
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`1986); see also Blanch, 467 F.3d at 250 (“Although fair use is a mixed question of
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`law and fact, this court has on a number of occasions resolved fair use
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`determinations at the summary judgment stage where . . . there are no genuine
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`issues of material fact.”) (internal quotations and alterations omitted); Swatch Grp.
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`Mgmt. Servs. Ltd. v. Bloomberg L.P., 756 F.3d 73, 93 (2d Cir. 2014) (affirming
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`district court’s sua sponte grant of summary judgment for defendants on basis of
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`fair use).
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`Although no factor is independently determinative, “[t]he heart of the fair use
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`inquiry” is the first factor—whether the use is “transformative” by “add[ing]
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`something new, with a further purpose or different character[.]” On Davis, 246 F.3d
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`at 174 (quoting Campbell, 510 U.S. at 579). “The central purpose of this
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`investigation is to see . . . whether the new work merely supersedes the objects of
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`the original creation, or instead adds something new, with a further purpose or
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`different character, altering the first with new expression, meaning, or message.”
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`Campbell, 510 U.S. at 579 (internal quotations and alterations omitted); Authors
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`Guild, Inc. v. HathiTrust, 755 F.3d 87, 96 (2d Cir. 2014) (“A use is transformative if
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`it does something more than repackage or republish the original copyrighted
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`work.”). “In other words, the would-be fair user of another's work must have
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`justification for the taking.” Authors Guild v. Google, Inc., 804 F.3d 202, 214-15 (2d
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`Cir. 2015), cert. denied sub nom. The Authors Guild v. Google, Inc., 136 S. Ct. 1658,
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`194 L. Ed. 2d 800 (2016).
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`It is well-established that “[a]mong the best recognized justifications for
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`copying from another's work is to provide comment on it or criticism of it.” Id.
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`Indeed, the Second Circuit has held “there is a strong presumption that factor one
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`favors the defendant if the allegedly infringing work fits the description of uses
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`described in section 107,” including “criticism” and “comment.” Wright v. Warner
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`Books, Inc., 953 F.2d 731, 736 (2d Cir. 1991); see also TCA Television Corp. v.
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`McCollum, 839 F.3d 168, 179 (2d Cir. 2016) (“[T]he uses identified by Congress in
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`the preamble to § 107—criticism, comment, news reporting, teaching, scholarship,
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`and research—might be deemed ‘most appropriate’ for a purpose or character
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`finding indicative of fair use.”); NXIVM Corp. v. Ross Inst., 364 F.3d 471, 477 (2d
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`Cir. 2004) (“Where the defendants' use is for the purposes of criticism [or] comment .
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`. . factor one will normally tilt in the defendants' favor.”) (internal quotation
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`omitted). Accordingly, courts have regularly found fair use after holding that the
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`purpose or character of an allegedly infringing work was criticism and/or comment.
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`See, e.g., NXIVM Corp., 364 F.3d at 482 (affirming district court denial of
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`preliminary injunction after finding that defendants’ allegedly infringing writings
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`were “undoubtedly transformative secondary uses intended as a form of criticism”);
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`Louis Vuitton Malletier, S.A. v. My Other Bag, Inc., 156 F. Supp. 3d 425, 444-45
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`(S.D.N.Y.), aff'd, 674 F. App'x 16 (2d Cir. 2016) (holding defendant’s line of tote bags
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`made fair use of plaintiff’s copyrights in part because “[p]arody, like other forms of
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`comment or criticism, has an obvious claim to transformative value”) (internal
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`quotations omitted); Adjmi v. DLT Entm't Ltd., 97 F. Supp. 3d 512, 531 (S.D.N.Y.
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`2015) (holding the play “3C” makes fair use of the television series “Three’s
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`Company” in part because the play “criticizes and comments upon Three's Company
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`by reimagining a familiar setting in a darker, exceedingly vulgar manner.”).
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`The second factor, which is “rarely found to be determinative,” “calls for
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`recognition that some works are closer to the closer to the core of intended copyright
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`protection that others;” a work that “is in the nature of an artistic creation . . . falls
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`close” to that core. On Davis, 246 F.3d at 174 (quoting Campbell, 510 U.S. at 586.).
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`Thus, a determination that an allegedly infringed work is fictional or creative
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`weighs against a finding of fair use.
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`The third factor is a consideration of the “amount and substantiality of the
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`portion [of the copyrighted work] used in relation to the copyrighted work as a
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`whole.” 17 U.S.C. § 107(3). This requires courts to “consider not only ‘the quantity
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`of the materials used’ but also ‘their quality and importance.’” McCollum, 839 F.3d
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`at 185 (quoting Campbell, 510 U.S. at 587). “[T]he extent of permissible copying
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`varies with the purpose and character of the use.” Cariou v. Prince, 714 F.3d 694,
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`710 (2d Cir. 2013) (quoting Bill Graham Archives v. Dorling Kindersley Ltd., 448
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`F.3d 605, 613 (2d Cir. 2006); see also Harper & Row Publishers, Inc. v. Nation
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`Enters., 471 U.S. 539, 565 (1985).
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`Finally, the fourth factor “focus[es] on whether the secondary use usurps
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`demand for the protected work by serving as a market substitute[.]” McCollum, 839
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`F.3d at 186 (citing Campbell, 510 U.S. at 592). This factor is concerned with a
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`secondary use that, “by offering a substitute for the original, usurp[s] a market that
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`properly belongs to the copyright-holder. Infinity Broad. Corp. v. Kirkwood, 150
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`F.3d 104, 110 (2d Cir. 1998) (emphasis added). “In weighing this factor, a court
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`properly looks to ‘not only the extent of market harm caused by the particular
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`actions of the alleged infringer, but also whether unrestricted and widespread
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`conduct of the sort engaged in by the defendant would result in a substantially
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`adverse impact on the potential market for the original.’” McCollum, 839 F.3d at
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`186 (quoting Campbell, 510 U.S. at 590).
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`The question is whether the allegedly infringing work serves as a “market
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`substitute” for the allegedly infringed work, not merely whether the market for the
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`allegedly infringed work was harmed. Campbell, 510 U.S. at 592 (noting that
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`critical parodies may legitimately aim at harming the market for a copyrighted
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`work, and that “a lethal parody, like a scathing theater review, kills demand for the
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`original [but] does not produce a harm cognizable under the Copyright Act.”); see
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`also On Davis, 246 F.3d at 175 (“[I]f the secondary work harms the market for the
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`original through criticism or parody, rather than by offering a market substitute for
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`the original that supersedes it, it does not produce a harm cognizable under the
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`Copyright Act.”); Nunez v. Caribbean Int'l News Corp., 235 F.3d 18, 24 (1st Cir.
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`2000) (“[T]o the extent that the copying damages a work's marketability by
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`parodying it or criticizing it, the fair use finding is unaffected.). Accordingly, “the
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`role of the courts is to distinguish between biting criticism that merely suppresses
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`demand and copyright infringement, which usurps it.” Campbell, 510 U.S. at 592
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`(internal quotations and alterations omitted). If the allegedly infringing work is not
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`properly considered a “market substitute” for the allegedly infringed work, the
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`fourth factor weighs in favor of the defendant. See, e.g., Google, Inc., 804 F.3d at
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`223-24 (holding that the “snippet view” of books digitized as part of the Google
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`Books project did not constitute an effectively competing substitute to the original
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`works); NXIVM Corp., 364 F.3d at 482 (“[A]s a general matter, criticisms of a
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`seminar or organization cannot substitute for the seminar or organization itself or
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`hijack its market.”).
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`c. DMCA Misrepresentation
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`The Digital Millennium Copyright Act (“DMCA”) governs the means by which
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`copyright holders can notify online service providers that their sites host or provide
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`access to allegedly infringing material. The DMCA provides that such notices,
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`commonly referred to as “takedown notices,” must include, inter alia, a “statement
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`that the complaining party has a good faith belief that use of the material in the
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`manner complained of is not authorized by the copyright owner[.]” 17 U.S.C. §
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`512(c)(3)(A)(v) (emphasis added). The DMCA further provides a mechanism,
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`commonly referred to as a “counter notification,” through which creators of allegedly
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`infringing work can effectively appeal a service provider’s decision to remove or
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`otherwise disable access to their work. Similar to a takedown notice, a counter
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`notification must include, inter alia, “a statement under penalty of perjury that the
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`subscriber has a good faith belief that the material was removed or disabled as a
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`result of mistake or misidentification of the material to be removed or disabled.” 17
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`U.S.C. § 512(g)(3)(C) (emphasis added). Relevant to the current action, the DMCA
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`prohibits “knowingly materially misrepresent[ing] . . . (1) that material or activity is
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`infringing, or (2) that material or activity was removed or disabled by mistake or
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`misidentification[.]” 17 U.S.C. § 512(f).
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`The Ninth Circuit has held that, in submitting a takedown notification, “a
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`copyright holder need only form a subjective good faith belief that a use is not
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`authorized.” Lenz v. Universal Music Corp., 815 F.3d 1145, 1153 (9th Cir. 2015),
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`cert. denied, 137 S. Ct. 416 (2016), and cert. denied, 137 S. Ct. 2263 (2017) (citing
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`Rossi v. Motion Picture Ass'n of Am. Inc., 391 F.3d 1000, 1004 (9th Cir. 2004)
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`(emphasis added). In other words, a copyright holder is not liable for
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`misrepresentation under the DMCA if they subjectively believe the identified
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`material infringes their copyright, even if that belief is ultimately mistaken. See id.
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`It is clear to this Court that the same subjective standard should apply to the “good
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`faith belief” requirement for counter notifications. If the same standard did not
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`apply, creators of allegedly infringing work would face a disparate and inequitable
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`burden in appealing an online service provider’s decision to remove or disable access
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`to their work. Given the fact that the statutory requirements for takedown notices
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`and counter notifications are substantially the same, the DMCA plainly does not
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`envision such a scheme. Cf. Rossi, 391 F.3d at 1005 (“Juxtaposing the ‘good faith’
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`proviso of the DMCA with the ‘knowing misrepresentation’ provision of that same
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`statute reveals an apparent statutory structure that predicated the imposition of
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`liability upon copyright owners only for knowing misrepresentations regarding
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`allegedly infringing websites.”)
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`d. Defamation
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`Because falsity is an element of defamation under New York law, truth is an
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`absolute defense to a defamation claim. See Tannerite Sports, LLC v.
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`NBCUniversal News Grp., 864 F.3d 236, 242-44 (2d Cir. 2017); see also Tolbert v.
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`Smith, 790 F.3d 427, 440 (2d Cir. 2015) (“A slanderous statement, by definition,
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`must be false.”); Guccione v. Hustler Magazine, Inc., 800 F.2d 298, 301 (2d Cir.
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`1986) (“Under New York law, . . . truth is an absolute, unqualified defense to a civil
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`defamation action.”) (internal quotation omitted). It is well-established that “a
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`statement need not be completely true, but can be substantially true, as when the
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`overall ‘gist or substance of the challenged statement’ is true.” Tolbert, 790 F.3d at
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`440 (quoting Chau v. Lewis, 771 F.3d 118, 129 (2d Cir. 2014)) (emphasis in
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`original); see also Masson v. New Yorker Magazine, Inc., 501 U.S. 496, 516 (1991)
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`(“The common law of . . . overlooks minor inaccuracies and concentrates upon
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`substantial truth.”) (internal citation omitted).
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`“A statement is substantially true if the statement would not have a different
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`effect on the mind of the reader from that which the pleaded truth would have
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`produced.” Tannerite Sports, LLC, 864 F.3d at 243-44 (quoting Biro v. Conde Nast,
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`883 F. Supp. 2d 441, 458 (S.D.N.Y. 2012)) (internal quotation marks omitted); see
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`also Cafferty v. S. Tier Pub. Co., 226 N.E. 76, 78 (N.Y. 1919) (“When the truth is so
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`near to the facts as published that fine and shaded distinctions must be drawn and
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`words pressed out of their ordinary usage to sustain a charge of libel, no legal harm
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`has been done.). “When a court interprets a publication in an action for defamation,
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`the entire publication, as well as the circumstances of its issuance, must be
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`considered in terms of its effect upon the ordinary reader.” Tannerite Sports, LLC,
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`864 F.3d at 243 (internal quotation and alteration omitted).
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`Along similar lines, statements of pure opinion, as opposed to statements of
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`fact, are not actionable as defamation under New York state law. See Kirch v.
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`Liberty Media Corp., 449 F.3d 388, 402 (2d Cir. 2006) (“New York law absolutely
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`protects statements of pure opinion, such that they can never be defamatory.”)
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`(internal quotation omitted). That said, when an opinion “impl[ies] a basis in
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`undisclosed facts, or facts known only to the author,” it may be actionable as a
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`“mixed opinion.” Chau, 771 F.3d at 129 (citation omitted); see also Enigma
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`Software Grp. USA, LLC v. Bleeping Computer LLC, 194 F. Supp. 3d 263, 281
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`(“What differentiates an actionable mixed opinion from a privileged, pure opinion is
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`the implication that the speaker knows certain facts, unknown to the audience,
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`which support the speaker’s opinion[.]”) (quotation and alterations omitted). “[T]he
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`dispositive inquiry . . . [is] whether the challenged statement can reasonably be
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`construed to be stating or implying facts about the defamation plaintiff.” Flamm v.
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`Am. Ass'n of Univ. Women, 201 F.3d 144, 148 (2d Cir. 2000).
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`III. DISCUSSION
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`a.
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`Claim I - Copyright Infringement
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`The Court’s review of the Klein and Hoss videos makes it clear that Claim I,
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`in which plaintiff alleges that defendants infringed plaintiff’s copyrights, must be
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`decided in defendants’ favor. The first fair use factor—and the most important—
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`weighs heavily in defendants’ favor. As discussed above, “criticism” and “comment”
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`are classic examples of fair use. 17 U.S.C. § 107; see also Google, Inc., 804 F.3d at
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`214-15. The Klein video is quintessential criticism and comment; illustrative
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`examples include2:
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` Ethan Klein remarks that the Bold Guy “comes from . . . an older day of
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`YouTube,” and refers to plaintiff as “the king of cringetube.”
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` Ethan Klein mocks the video’s opening title sequence and mimics the
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`movement of the words by performing a dance in his seat.
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` After watching what they apparently consider a lewd and unrealistic
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`opening sequence, defendants point out that plaintiff wrote the script, and
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`Ethan Klein remarks “this is how Matt Hoss sees the world and it says more
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`about him than it does about anyone else.”
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` Defendants sarcastically compliment the “sleeveless hoodie” that Bold Guy
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`wears, calling it “one of the classiest . . . pieces of clothing you can own.”
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` Defendants mock the fact that plaintiff included a line in the script
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`complimenting his own “strong shoulders.”
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` Hila Klein expresses irritation with the female character, stating “the female
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`characters [in Bold Guy videos] are always so annoying, and he writes them
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`like that.”
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` Defendants engage in extended criticism and mockery of the female
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`character’s statement “catch me and I’ll let you do whatever you want to me.”
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`2 Although the Klein video is not timestamped, these illustrative examples occur chronologically.
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` Defendants mock plaintiff’s parkour ability, sarcastically stating that
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`plaintiff “thinks he’s . . . a parkour expert.”
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` Ethan Klein criticizes a scene in which Bold Guy rapidly moves from one
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`location to another, stating that the scene “broke [the] realism” of the video.
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`Irrespective of whether one finds it necessary, accurate, or well-executed, the Klein
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`video is nonetheless criticism and commentary on the Hoss video. Thus, like
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`NXIVM Corp., Louis Vuitton, and Adjmi, this first factor weighs in defendants’
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`favor.
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`The second factor examines the nature of the allegedly infringed work.
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`Defendants argue that the Hoss video and plaintiff’s “Bold Guy” video skits are
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`factual rather than creative in nature because plaintiff has said he draws
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`inspiration for the character form his own experiences and personality. The Court
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`disagrees. Plaintiff’s videos, including the Hoss video, are entirely scripted and
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`fictional, regardless of whether plaintiff draws on himself for the Bold Guy
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`character. If creative works were deemed nonfiction whenever an author relies on
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`his or her own experience, the fiction genre would be defined almost entirely out of
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`existence. Since the Hoss video is a creative work, the second factor weighs against
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`a finding of fair use. On Davis, 246 F.3d at 174 (citing Campbell, 510 U.S. at 586.).
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`The third factor examines the amount and substantiality of the portion of the
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`copyrighted work used. Defendants argue that the third factor weighs in their favor
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`because plaintiff’s video constitutes only a small proportion of the content of
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`defendants’ video. Defendants’ analysis gets the math backwards. The third fair
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`use factor considers what proportion of the copyrighted work the allegedly
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`infringing work uses, and then how well tailored that use was to the allegedly
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`infringing work’s proper purpose—no matter how large or long the allegedly
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`infringing work is. Here, defendants use a number of short segments of plaintiff’s
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`work, interspersing their commentary and critique along the way. It is certainly
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`true that when one adds up all of the segments used, the total amounts to three
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`minutes and fifteen seconds of a five minute and twenty-four second video. The law
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`is clear, however, that quantity alone is not determinative.
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`It is evident that to comment on and critique a work, clips of the original may
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`be used. Campbell, 510 U.S. at 588 (“[P]arody must be able to ‘conjure up’ at least
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`enough of that original to make the object of its critical wit recognizable. . . .
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`Copying does not become excessive in relation to parodic purpose merely because
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`the portion taken was the original's heart.”); Abilene Music, Inc. v. Sony Music
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`Entm't, Inc., 320 F. Supp. 2d 84, 89 (S.D.N.Y. 2003) (“[A] parody must take
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`recognizable material from the original in order to convey its message[.]”). Without
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`using actual clips, the commentary and critique here would lose context and utility.
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`Here, the “extent” and “quality and importance” of the video clips used by
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`defendants were reasonable to accomplish the transformative purpose of critical
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`commentary. See McCollum, 839 F.3d at 185. This factor is therefore neutral—a
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`great deal of plaintiff’s work was copied, but such copying was plainly necessary to
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`the commentary and critique.
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`The fourth factor—the commercial impact the allegedly infringing work has
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`or had on demand for the Hoss video—also weighs in favor of defendants. The
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`purpose of the fourth factor is to determine to what degree an allegedly infringing
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`work “usurps” demand for the copyrighted work, thereby resulting in a loss for the
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`infringee or unjust enrichment for the infringer. See id.; see also Campbell, 510
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`U.S. at 592 (stating “the role of the courts is to distinguish between biting criticism
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`that merely suppresses demand and copyright infringement, which usurps it.”)
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`(internal quotations and alterations omitted); NXIVM Corp., 364 F.3d at 481-82 (“In
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`considering the fourth factor, our concern is not whether the secondary use
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`suppresses or even destroys the market for the original work or its potential
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`derivatives, but whether the secondary use usurps the market of the original
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`work.”). Here, it is clear to the Court that the Klein video does not serve as a
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`market substitute for the Hoss video; anyone seeking to enjoy “Bold Guy v. Parkour
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`Girl” on its own will have a very different experience watching the Klein video,
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`which responds to and transforms the Hoss video from a skit into fodder for caustic,
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`moment-by-moment commentary and mockery. Because the Klein video does not
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`“offer[] a substitute for the original,” it does not (and indeed, cannot) “usurp a
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`market that properly belongs to the copyright-holder.” Infinity Broad. Corp., 150
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`F.3d at 110. The fourth factor thus weighs in favor of a determination of fair use.
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`b.
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`Claim II - DMCA Misrepresentation
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`The Court has held that the Klein video constitutes fair use, and further that
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`the Klein video does not infringe plaintiff’s copyrights. Accordingly, it is clear to the
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`Court that Claim II, which alleges that defendants made misrepresentations in
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`their DMCA counter notification, must also be dismissed. It is self-evident that a
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`statement cannot be a “misrepresentation” for purposes of 17 U.S.C. § 512(f) if it is
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`factually accurate.
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`But even if this Court held the Klein video is not fair use, the Court would
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`still dismiss Claim II because defendants clearly had a subjective “good faith belief”
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`that their video did not infringe plaintiff’s copyrights. Cf. Lenz, 815 F.3d at 1153.
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`It is undisputed that defendants understand the concept of fair use and have an
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`established practice for ensuring their videos make fair use of copyrighted material.
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`(ECF No. 101 ¶ 28.) It is also undisputed that defendants filed a counter
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`notification on August 26, 2016 alleging that the Klein video constituted fair use.
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`(ECF No. 101 ¶ 49.) This undisputed evidence clearly establishes the subjective
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`“good faith belief” required under 17 U.S.C. § 512(g)(3)(C). Plaintiff has failed to
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`proffer any evidence that suggests defendants lacked a subjective “good faith belief,”
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`and therefore has failed to create a triable issue. Accordingly, Claim II must
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`additionally be dismissed for that reason.3
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`c.
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`Claim III – Defamation
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`Based on this Court’s review of the Lawsuit video, it is clear that Claim III,
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`in which plaintiff alleges that defendants defamed the plaintiff, must be dismissed.
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`First, as plaintiff has acknowledged, the Lawsuit video is replete with “non-
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`3 In its order dated January 18, 2017, the Court characterized Claim II as “exceptionally weak.” (ECF No. 79 p. 3, n.
`1.) Plaintiff has done nothing to strengthen his claim in the time since that order was issued.
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`Case 1:16-cv-03081-KBF Document 116 Filed 08/23/17 Page 19 of 21
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`actionable opinion[s].” (ECF No. 99.); Kirch, 449 F.3d at 402 (“New York law
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`absolutely protects statements of pure opinion, such that they can never be
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`defamatory.”) (internal quotation omitted). For example, Ethan Klein’s statement
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`“I think that the heart and soul of this is . . . he doesn’t like that we made fun of
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`him, and so he’s suing us” is a quintessential statement of pure opinion. Nothing
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`about Ethan Klein’s statement suggests that his opinion is based on any non-public
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`facts about plaintiff, therefore the statement is clearly not actionable as a “mixed
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`opinion.” Chau, 771 F.3d at 129.
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`The only other allegedly defamator