Hughes v. Benjamin

Background

Akilah Hughes sued Carl Benjamin and ten unidentified defendants. The complaint asserted two claims: copyright infringement under 17 U.S.C. § 501 and misrepresentation under § 512(f) of the Digital Millennium Copyright Act. Hughes alleged that Benjamin copied portions of her YouTube video, We Thought She Would Win, into his video, SJW Levels of Awareness, and posted the allegedly infringing video on YouTube and Twitter.

Hughes’s video showed footage from Hillary Clinton’s 2016 election-night campaign party and Hughes’s commentary about the election and related social and political issues. Benjamin’s video consisted entirely of selected clips from Hughes’s video and contained no commentary or video recorded by Benjamin. Hughes alleged that Benjamin’s video copied one minute and twenty-eight seconds, but the court’s review of the videos showed that it copied about thirty seconds more. The court described the copied material as approximately 20 percent of Hughes’s video.

After discovering Benjamin’s video, Hughes sent YouTube a copyright takedown notice, and YouTube disabled public access to Benjamin’s video. Benjamin later sent YouTube a counter-notification stating that the video was entirely transformative and intended for parody. Hughes alleged that Benjamin’s statements were knowing and material misrepresentations under the Digital Millennium Copyright Act.

Benjamin moved to dismiss the complaint for failure to state a claim. In deciding the motion, the court considered the complaint, the YouTube counter-notification attached to it, and authentic copies of both videos that were incorporated into the complaint.

Copyright Claim and Fair Use

To plead copyright infringement, a plaintiff must allege ownership of a valid copyright and copying of original parts of the copyrighted work. Copying may nevertheless be lawful if the use is protected by fair use, an exception that permits certain uses of copyrighted works, including criticism and commentary.

The court held that the fair-use defense was clear from the complaint and the videos themselves. It considered the four statutory fair-use factors.

Purpose and character of the use. The court found that Benjamin used selected portions of Hughes’s video for criticism and commentary. It relied on the title SJW Levels of Awareness, the context of Benjamin’s YouTube channels, and his selective choice of clips. The court concluded that a reasonable viewer would understand the video as criticizing Hughes and commenting on what Benjamin viewed as her lack of awareness. The court found any possible commercial aspect of Benjamin’s video less important than its transformative critical purpose.

Nature of the copyrighted work. The court found this factor essentially neutral. Hughes’s video was both informational because it gave a firsthand account of a newsworthy event and creative because it included commentary and production choices. It was published, which also weighed against treating the factor as strongly unfavorable to fair use.

Amount used. The court found that Benjamin copied about 20 percent of Hughes’s video. Although the selected clips were important parts of Hughes’s work, the court concluded that Benjamin used no more than reasonably necessary to convey his critical message and did not copy portions unrelated to that message. This factor favored Benjamin.

Effect on the market. The court found no meaningful risk that Benjamin’s video would replace Hughes’s original video. It reasoned that the videos had different target audiences and that Hughes’s audience would not likely abandon her channel to watch a critical video on Benjamin’s channel. This factor favored Benjamin.

Because three factors favored Benjamin, including the most important factor concerning the purpose and character of the use, and the remaining factor was neutral, the court held that fair use applied. It therefore ruled that Hughes had failed to state a copyright-infringement claim.

Digital Millennium Copyright Act Claim

The Digital Millennium Copyright Act permits an online service provider to restore access to allegedly infringing material after receiving a proper counter-notification. A person may be liable under § 512(f) for knowingly making a material misrepresentation that material was removed or disabled by mistake or misidentification, but the plaintiff must plausibly allege such a misrepresentation.

The court held that Hughes’s allegations were insufficient. Benjamin’s statement that his video was fair use was legally accurate because the court itself concluded that the use was fair. The court also found that describing the video as transformative was not a misrepresentation. Finally, the court held that the difference between calling the video “entirely transformative” and merely “transformative” did not matter legally, and that Hughes had not plausibly alleged that Benjamin’s statement that the video was intended for parody was a knowing and material misrepresentation.

Disposition

Judge Richard J. Sullivan granted Benjamin’s motion to dismiss. The court dismissed Hughes’s copyright-infringement and Digital Millennium Copyright Act misrepresentation claims with prejudice, stating that amendment would be futile. The Clerk of Court was directed to terminate the motion and close the case.