Ted Entertainment, Inc. v. Saber

District court grants defendant’s motion for judgment on the pleadings on plaintiff’s copyright claim, holding that defendant’s livestream in which she provided live reactions to and criticism of plaintiff’s YouTube documentary constituted fair use.

Plaintiff Ted Entertainment Inc., owned by YouTuber Ethan Klein, sued defendant Alexandra Marwa Saber, a Twitch streamer, for copyright infringement. Plaintiff posted a documentary titled “Content Nuke: Hasan Piker” (The Nuke) on his YouTube channel, centering on “the allegedly controversial political ideologies of the ‘alt-left’ Twitch streamer Hasan Piker … regarding the Israel-Palestine conflict.” Defendant then livestreamed herself on Twitch watching The Nuke, providing commentary on and criticism of its overall quality, editing, sources and substantive merit. Saber filed a motion for judgment on the pleadings, arguing that her livestream constituted fair use of The Nuke.

The court held that the first factor in the fair use analysis—the purpose and character of the use—weighed in favor of defendant. The court noted that the fair use inquiry does not ask whether criticism is accurate or mean-spirited; instead, the salient question is whether the use of the copyrighted work is to provide critical commentary rather than to merely repackage the original work. The court held that the purpose of defendant’s use was to “contest, criticize and mock [p]laintiff’s message.” Plaintiff’s argument that the works had an overlapping purpose was undercut by his own admission in the complaint that Saber’s livestream sought to use The Nuke (which aimed “to expose how Hasan radicalizes people online to be antisemitic and anti-Israeli”) for the exact opposite purpose: “to radicalize [Saber’s] audience to be antisemitic and anti-Israeli, along with defending Hasan.” Although defendant’s use was commercial, as she “is eligible to receive subscriptions, donations, and advertising revenue during her Twitch broadcasts,” this did not outweigh the highly transformative character of her use. Accordingly, the court found that defendant’s use of plaintiff’s The Nuke was highly transformative.

The court held that the second factor—the nature of the copyrighted work—weighed in favor of plaintiff, as The Nuke “is a creative work with significant informational contents.” However, the court noted that this factor is given less weight in overall fair use balancing. On the third factor—the amount and substantiality of the portion used in relation to the copyrighted work as a whole—plaintiff argued that defendant showed the entirety of his documentary on her livestream. The court held, however, that the amount of plaintiff’s work used by defendant was reasonable to accomplish the transformative purpose of critical commentary; the court thus found that this factor did not weigh in favor of plaintiff.

Lastly, the court held that the fourth factor—the effect of defendant’s use on the market for or value of the original—weighed in favor of defendant. The court concluded that because a viewer of plaintiff’s original work and defendant’s critical commentary would walk away with fundamentally different viewing experiences, defendant’s work did not constitute a market substitute for plaintiff’s work. Again, the court pointed to plaintiff’s own allegations, which posited that defendant’s work argued for a viewpoint that is the complete opposite of the viewpoint of the original work.

With three of the four fair use factors strongly favoring defendant, the court accordingly granted defendant’s motion for judgment on the pleadings.

Summary prepared by Safia Gray Hussain and Erin Shields