District court dismisses plaintiff’s copyright and DMCA claims, finding defendant’s use of plaintiff’s YouTube video on his YouTube channel was for criticism and commentary, and therefore transformative fair use, and defendant did not make any knowing or material misrepresentation in his DMCA counter-notification.
Plaintiff Akilah Hughes, a content creator and filmmaker who maintains the YouTube channel Akilah Obviously covering topics including “comedy, race, social commentary, feminism, beauty, and fashion,” brought suit against Carl Benjamin, another content creator and filmmaker who maintains the YouTube channels Sargon of Akkad and The Thinkery, where he publishes “anti-ideological and anti-identitarian content focusing on the left, racism, feminism, Black Lives Matter, and Islam.” After filming Hillary Clinton’s campaign party in Manhattan on the night of the 2016 presidential election, Hughes posted a video titled We Thought She Would Win to her YouTube channel, which contains Hughes’ campaign party footage, and Hughes’ commentary on the night’s events and the implications of Secretary Clinton’s defeat. The day after We Thought She Would Win was published, Benjamin posted a video on one of his YouTube channels titled SJW Levels of Awareness, which consisted of six clips of We Thought She Would Win. Benjamin routinely uses the acronym SJW, which stands for social justice warrior, in a “demeaning context to belittle proponents of perceived liberal social policies and stances.” After discovering Benjamin’s video, Hughes submitted a takedown notice to YouTube, alleging copyright infringement. In response, Benjamin sent YouTube a DMCA counter-notification claiming that SJW Levels of Awareness was “entirely transformative … and intended for parody.” On that basis, YouTube reinstated access to Benjamin’s video. Hughes then sued Benjamin for copyright infringement and DMCA misrepresentation. Benjamin filed a motion to dismiss, which the court granted on the grounds that Benjamin’s use of the material constituted fair use.
Benjamin did not deny copying Hughes’ work. Rather, he argued that his use was fair use. The court thus considered the following fair use factors: (1) the purpose and character of the use, (2) the nature of the copyrighted work, (3) the amount and substantiality of the portion used and (4) the effect of the use on the potential marked for or value of the copyrighted work.
As to the purpose and character of the use, the critical question is whether the new work is transformative in that it “imbues it with a character, different from that for which it was created.” Notably, a work can be transformative even when it consists entirely of portions of an original work. Because SJW Levels of Awareness was created for the purpose of criticism and commentary, the court held that it was made for transformative purposes. Benjamin routinely uses his YouTube channel to criticize viewpoints on various social and political issues, such as “the left.” As such, a reasonable observer of the video would “quickly grasp its critical purpose.” Moreover, Benjamin was careful to excerpt We Thought She Would Win in a way to maximize his criticism of Hughes’ liberal viewpoint and comment on her perceived lack of awareness. Therefore, the court held that the first fair use factor favors Benjamin.
The second fair use factor, the inquiry, favors works intended for creative expression because they are “closer to the core of intended copyright protection.” As such, courts consider (1) whether the (copyrighted) work is expressive or creative, and (2) whether a work is published or unpublished. The court held that the second fair use factor did not impact the analysis in this case because We Thought She Would Win is both expressive/creative and informative.
As to the third factor, the amount and substantiality of the portion used, the court considers the quantity, quality and importance of the materials used. “The crux of the inquiry is whether no more [content] was taken than necessary, given the purpose and character of the allegedly infringing use.” The court found that Benjamin copied only 20% of We Thought She Would Win, which was as much as he deemed reasonably necessary for him to convey his message in SJW Levels of Awareness. Therefore, the court held that the third factor weighs in favor of Benjamin.
As to the fourth factor, generally, “[t]he more transformative the secondary use, the less [the] likelihood that the secondary use substitutes for the original.” The court found that there was no danger that SJW Levels of Awareness would usurp the market of a progressive commentary such as We Thought She Would Win. Benjamin and Hughes target different audiences, and Hughes’ audience is unlikely to abandon her progressive YouTube channel to watch SJW Levels of Awareness on a conservative YouTube channel. Therefore, the court held that the fourth factor weighs in favor of Benjamin. Ultimately, after finding that three of the four fair use factors favored Benjamin, the court held that the fair use defense barred Hughes’ copyright infringement claim.
Finally, the court dismissed Hughes’ DMCA claim after holding that because it agreed with Benjamin that his use was fair use, her complaint does not plausibly allege that Benjamin made misrepresentations in his counter-notification.
Summary prepared by Linna Chen and Ava Badiee