Page:Hosseinzadeh v. Klein.pdf/12

 upon the ordinary reader.”, 864 F.3d at 243 (internal quotation and alteration omitted).

Along similar lines, statements of pure opinion, as opposed to statements of fact, are not actionable as defamation under New York state law. , 449 F.3d 388, 402 (2d Cir. 2006) (“New York law absolutely protects statements of pure opinion, such that they can never be defamatory.”) (internal quotation omitted). That said, when an opinion “impl[ies] a basis in undisclosed facts, or facts known only to the author,” it may be actionable as a “mixed opinion.”, 771 F.3d at 129 (citation omitted); , 194 F.Supp.3d 263, 281 (S.D.N.Y.2016) (“What differentiates an actionable mixed opinion from a privileged, pure opinion is the implication that the speaker knows certain facts, unknown to the audience, which support the speaker’s opinion[.]”) (quotation and alterations omitted). “[T]he dispositive inquiry … [is] whether the challenged statement can reasonably be construed to be stating or implying facts about the defamation plaintiff.”, 201 F.3d 144, 148 (2d Cir. 2000).

III. DISCUSSION


 * a.

The Court’s review of the Klein and Hoss videos makes it clear that Claim I, in which plaintiff alleged that defendants infringed plaintiff’s copyright, must be decided in defendants’ favor. The first fair use factor—and the most important—weighs heavily in defendants’ favor. As discussed above, “criticism” and “comment” are classic examples of fair use. 17 U.S.C. § 107;, 804 F.3d at 214–15. The Klein video is quintessential criticism and comment; illustrative examples include :
 * Ethan Klein remarks that the Bold Guy “comes from … an older day of YouTube,” and refers to plaintiff as “the king of cringetube.”
 * Ethan Klein mocks the video’s opening title sequence and mimics the movement of the words by performing a dance in his seat.
 * After watching what they apparently consider a lewd and unrealistic opening sequence, defendants point out that plaintiff wrote the scripts, and Ethan Klein remarks “this is how Matt Hoss sees the world and it says more about him than it does about anyone else.”
 * Defendants sarcastically compliment the “sleeveless hoodie” that Bold Guy wears, calling it “one of the classiest … pieces of clothing you can own.”
 * Defendants mock the fact that plaintiff included a line in the script complimenting his own “strong shoulders.”
 * Hila Klein expresses irritation with the female character, stating “the female characters [in Bold Guy videos] are always so annoying, and he writes them like that.”
 * Defendants engage in extended criticism and mockery of the female character’s statement “catch me and I’ll let you do whatever you want to me.”
 * Defendants mock plaintiff’s parkour ability, sarcastically stating that plaintiff “thinks he’s … a parkour expert.”