Page:Hosseinzadeh v. Klein.pdf/13

 *Ethan Klein criticizes a scene in which Bold Guy rapidly moves from one location to another, stating that the scene “broke [the] realism” of the video. Irrespective of whether one finds it necessary, accurate, or well-executed, the Klein video is nonetheless criticism and commentary on the Hoss video. Thus, like, , and , this first factor weight in defendants’ favor.

The second factor examines the nature of the allegedly infringed work. Defendants argue that the Hoss video and plaintiff’s “Bold Guy” video skits are factual rather than creative in nature because plaintiff has said he draws inspiration for the character from his own experiences and personality. The Court disagrees. Plaintiff’s videos, including the Hoss video, are entirely scripted and fictional, regardless of whether plaintiff draws on himself for the Bold Guy character. If creative works were deemed nonfiction whenever an author relies on his or her own experience, the fiction genre would be defined almost entirely out of existence. Since the Hoss video is a creative work, the second factor weighs against a finding of fair use. , 246 F.3d at 174 (citing, 510 U.S. at 586, 114 S.Ct. 1164).

The third factor examines the amount and substantiality of the portion of the copyrighted work used. Defendants argue that the third factor weighs in their favor because plaintiff’s video constitutes only a small proportion of the content of defendants’ video. Defendants’ analysis gets the math backwards. The third fair use factor considers what proportion of the the allegedly infringing work uses, and then how well tailored that use was to the allegedly infringing work’s proper purpose—no matter how large or long the allegedly infringing work is. Here, defendants use a number of short segments of plaintiff’s work, interspersing their commentary and critique along the way. It is certainly true that when one adds up all of the segments used, the total amounts to three minutes and fifteen seconds of a five minutes and twenty-four second video. The law is clear, however, that quantity alone is not determinative.

It is evident that to comment on and critique a work, clips of the original may be used. , 510 U.S. at 588, 114 S.Ct. 1164 (“[P]arody must be able to ‘conjure up’ at least enough of that original to make the object of its critical wit recognizable. … Copying does not become excessive in relation to parodic purpose merely because the portion taken was the original’s heart.”);, 320 F.Supp.2d 84, 89 (S.D.N.Y. 2003) (“[A] parody must take recognizable material from the original in order to convey its message[.]”). Without using actual clips, the commentary and critique here would lose context and utility. Here, the “extent” and “quality and importance” of the video clips used by defendants were reasonable to accomplish the transformative purpose of critical commentary. , 839 F.3d at 185. This factor is therefore neutral—a great deal of plaintiff’s work was copied, but such copying was plainly necessary to the commentary and critique.

The fourth factor—the commercial impact the allegedly infringing work has or had on demand for the Hoss video—also weighs in favor of defendants. The purpose of the fourth factor is to determine to what degree an allegedly infringing work “usurps” demand for the copyrighted work, thereby resulting in a loss for the infringee or unjust enrichment for the infringer. ;, 510 U.S. at 592, 114 S.Ct. 1164 (stating “the role of the courts is to distinguish between biting criticism that merely suppresses demand and copyright