Suing critics using copyright doesn't work

Hosseinzadeh v. Klein, No. 16-cv-03081 (S.D.N.Y. Aug. 23, 2017)

Hosseinzadeh posts original video content on YouTube, playing a character known as “Bold Guy.” Ethan and Hila Klein criticized “Bold Guy vs. Parkour Girl,” in which the Bold Guy flirts with a woman and chases her through various sequences, in a video titled “The Big, The BOLD, The Beautiful.” The accused video is almost fourteen minutes long, and intersperses long segments of commentary with short clips of the Bold Guy video, ultimately using three minutes and fifteen seconds of that five minute, twenty-four second long video. “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.” From that, you can fill in the rest of the fair analysis: Kleins win.

Remaining claims: a §512(f) false DMCA counternotification claim and defamation based on statements about the lawsuit. Those fare no better. If a subjective good faith belief is enough to submit a §512 notice, as the Ninth Circuit has held, then the same is true for a counternotification. Since the video was fair use, there weren’t any misrepresentations in the counternotification. But even had the court found otherwise, the §512(f) claim still fails because the Kleins “clearly had a subjective ‘good faith belief’ that their video did not infringe plaintiff’s copyrights.” The court emphasized that it was “undisputed that defendants understand the concept of fair use and have an established practice for ensuring their videos make fair use of copyrighted material,” which was enough to clearly establish their good faith belief/win summary judgment.

Defamation: nothing in the lawsuit video was defamatory; it was either substantially true or opinion. E.g,, Ethan Klein’s statement “I think that the heart and soul of this is . . . he doesn’t like that we made fun of him, and so he’s suing us” was “a quintessential statement of pure opinion.” The plaintiff also challenged Ethan Klein’s statement that “several months passed [and] nothing happen[ed]” prior to plaintiff’s first settlement offer and threat of litigation, when plaintiff sent a warning email during that time. A statement is “substantially true” “if the statement would not have a different effect on the mind of the reader from that which the pleaded truth would have produced.” Plaintiff argued that Klein’s statement portrayed him as “a trigger-happy litigant who immediately activates his lawyers when he is criticized.” But (1) in context, the statement was clearly about the Kleins’ surprise and disappointment that a lawsuit was filed several months after they first posted the video, and didn’t necessarily mean that the parties had no communication during that period. And (2) anyway, mention of the warning email wouldn’t have changed anything—if the actual statement would lead a viewer to see plaintiff as a “trigger-happy litigant,” “it is exceptionally unlikely that knowledge of the April 2, 2016 email, in which plaintiff explicitly threatened ‘costly’ legal action if defendants did not comply with his demands within twenty-four hours, would change that perception.”