District court dismisses copyright and DMCA claims against actress, finding her use of portions of film not yet widely released in her acting reel to be transformative fair use and that defendant neither intentionally altered copyright information nor knew or had reasonable grounds to know that her actions would induce, enable, facilitate or conceal infringement, as required to sustain DMCA claim.
Robin Bain, who wrote, produced, directed and performed in the film Nowhereland, brought suit against actress Jessica Haid, who also appeared in the film, for incorporating into her acting reel for submission to casting directors scenes from Nowhereland in which she had acted. Haid retained LA Media Works Corp. to edit scenes from the film to create an acting reel she could submit to casting directors, and LA Media Works removed the film’s original watermark from the segments featuring Haid that it included in the acting reel. In August 2017, Bain discovered Haid’s acting reel on LA Media’s website and sued for various causes of action including copyright infringement, vicarious and/or contributory copyright infringement, violations of the Digital Millennium Copyright Act (DMCA), and conversion. Haid then filed a counterclaim with various allegations, including that Bain exposed Haid to unsafe conditions on the film set and that Bain failed to pay Haid the minimum wage for her work.
On cross motions for summary judgment, the court first considered the four fair use factors. As to the first factor, the purpose and character of the use, the court reasoned that the purpose of the fair use doctrine is to determine whether the alleged infringing work adds something new, altering the copyrighted work with “new expression, meaning or message”—that is, whether and to what extent the alleged infringing work is transformative. The court found Haid’s reel to be transformative: “unlike the original film, which seeks to tell a story involving the sexual exploitation of women, the reel told no story.” Instead, the purpose of the reel was to provide information to casting directors about Haid’s acting abilities, and it shows only selected scenes that revealed little about the plot of the film.
The court found that the second factor, the nature of the copyrighted work, weighed in favor of the plaintiff because the film was close to the “core of intended copyright protection” as a work of fiction inspired by real life issues and that the release of the film was very limited prior to the creation of Haid’s reel.
As to the third factor, the amount and substantiality of the portion used, the court looked to the quantitative amount and qualitative value of the original work used in relation to the justification for that use, and concluded that the factor weighed in favor of Haid. Even the longer version of Haid’s reel, at three minutes and 39 seconds, amounted to less than 4% of the film’s 95-minute length, and all but two of the 40 clips lasted less than 10 seconds. While Haid’s use of a minute and nine seconds from the two-minute-and-37-second “most pivotal scene” of Nowhereland presented a closer question, the court found that the length of the scene used in the reel served to convey Haid’s acting range in a way that a shorter clip from that scene might not.
As to the fourth factor, the effect of the use on the potential market, the court, quoting Supreme Court precedent, considered both the extent of the market harm and whether “unrestricted and widespread conduct” like the kind Haid engaged in would cause “a substantially adverse impact on the potential market” for Bain’s film. Although Haid’s use of the reel was commercial in nature (used to obtain future acting positions), there was no evidence she required payment for her reel or the copy of the film she had saved. As the film and reel served different market functions, the court concluded that this factor also weighed in Haid’s favor. Balancing the four factors, the court found that Haid’s use of portions of the film for her acting reel was fair use and granted her motion for summary judgment on Bain’s copyright infringement claims.
On Bain’s DMCA claim, the court held that there was no evidence that Haid intentionally altered the copyright information of the film or that she knew or had reasonable grounds to know that being listed as the “owner” of the Google Drive file would induce, enable, facilitate or conceal infringement, as required by the DMCA. The court held that Bain’s failure to supply any evidence from which a reasonable juror could conclude that Haid acted with the requisite knowledge was fatal to her DMCA claim.
Having resolved all of the federal claims over which it had original jurisdiction, the court declined to exercise supplemental jurisdiction over either Bain’s or Haid’s state law claims.
Finally, the court noted that the dispute “should have been resolved long ago, through arbitration or mutual agreement,” and admonished the parties for expending their own and the [c]ourt’s limited resources on litigation that “appear[s] to far exceed the monetary value of either Bain’s claims or Haid’s counterclaims.”
Summary prepared by Melanie Howard and Lisa Rubin