Page:Hosseinzadeh v. Klein.pdf/7

 the Klein video is decidedly not a market substitute for the Hoss video. For these and the other reasons set forth below, defendants’ use of clips from the Hoss video constitutes fair use as a matter of law. Further, it is clear that defendants’ comments regarding the lawsuit are either non-actionable opinions or substantially true as a matter of law. For these and the other reasons set forth below, plaintiff’s defamation claim fails. Defendants’ motion for summary judgment is therefore GRANTED, and plaintiff’s motion is DENIED.

I. BACKGROUND

The following facts are taken from the parties’ submissions under Rule 56.1 and are undisputed unless otherwise noted.

Plaintiff is a filmmaker who posts original video content on YouTube. (Plaintiff’s Rule 56.1 Counterstatement of Undisputed Material Fact (“Pl. 56.1”), ECF No. 101 ¶ 2.) He has written and performed in a collection of short video skits portraying encounters between a fictional character known as “Bold Guy,” played by plaintiff, and various women whom Bold Guy meets and pursues. ( ¶ 3.) The allegedly infringed work at issue here is a video skit titled “Bold Guy vs. Parkour Girl,” (the “Hoss video”) in which Bold Guy flirts with a woman and chases her through various sequences. (ECF No. 84-1 Ex. 1.)

Defendants also disseminate their work through YouTube. (ECF No. 101 ¶ 19.) On February 15, 2016, defendants posted a video titled “The Big, The BOLD, The Beautiful” (the “Klein video”) on YouTube. (ECF No. 84-1 Ex. 2.) In this video, defendants comment on and criticize the Hoss video, playing portions of it in the process. (ECF No. 101 ¶ 31.) The Klein video opens with commentary and discussion between Ethan and Hila Klein, followed by segments of the Hoss video which they play, stop, and continue to comment on and criticize. The Klein video, which is almost fourteen minutes long, intersperses relatively short segments of the Hoss video with long segments of the Kleins’ commentary, ultimately using three minutes and fifteen seconds of the five minute, twenty-four second long Hoss video. The Klein video is harshly critical of the Hoss video, and includes mockery of plaintiff’s performance and what the defendants consider unrealistic dialog and plotlines. (ECF No. 84-1 Ex. 2.) In addition, defendants’ commentary refers to the Hoss video as quasi-pornographic and reminiscent of a “Cringetube” genre of YouTube video known for “cringe”-worthy sexual content. (ECF No. 84-1 Ex. 2.) As critical as it is, the Klein video is roughly equivalent to the kind of commentary and criticism of a creative work that might occur in a film studies class.

On April 23, 2016, plaintiff submitted a DMCA takedown notification to YouTube regarding the Klein video. YouTube took down the Klein video the same day. Defendants submitted a DMCA counter notification challenging the takedown on the basis that the Klein video was,, fair use and noncommercial. Three days later, this action was filed.

On May 24, 2016, defendants posted a new video on YouTube titled “We’re Being Sued,” (the “Lawsuit video”), which discussed this action and criticized plaintiff for filing it. (ECF No. 84-1 Ex. 3.) In