Lynk Media, LLC v. Peacock TV LLC et al
Filing
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MEMORANDUM OPINION AND ORDER re: 21 MOTION to Dismiss the Amended Complaint. filed by Peacock TV LLC, NBCUniversal Media, LLC. The Court has considered all of the arguments raised by the parties. To the extent not specifically addressed, the arguments are either moot or without merit. For the foregoing reasons, the motion to dismiss the Amended Complaint is denied. The Clerk is directed to close ECF No. 21. SO ORDERED. (Signed by Judge John G. Koeltl on 5/8/2024) (ks)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
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LYNK MEDIA, LLC,
Plaintiff,
23-cv-5845 (JGK)
- against PEACOCK TV LLC and NBCUNIVERSAL
MEDIA, LLC,
MEMORANDUM OPINION
AND ORDER
Defendants.
───────────────────────────────────
JOHN G. KOELTL, District Judge:
The plaintiff, Lynk Media, LLC, asserts a claim for
copyright infringement against the defendants, Peacock TV LLC
(“Peacock”) and NBCUniversal Media, LLC (“NBC”), for the
unauthorized use of two videos owned by the plaintiff. Am.
Compl. ¶¶ 1-5, ECF No. 19. The defendants now move to dismiss
the plaintiff’s complaint for failure to state a claim pursuant
to Federal Rule of Civil Procedure 12(b)(6). ECF No. 21.
I.
The following facts are taken from the amended complaint
and are accepted as true for the purposes of deciding this
motion.
The plaintiff owns the rights to two videos that are at
issue in this case. The first video depicts a press conference
about voter fraud given by Rudy Giuliani at the Four Seasons
Total Landscaping Company in Philadelphia on November 7, 2020.
Am. Compl. ¶ 14. The second video depicts confrontations between
supporters of Joe Biden and supporters of Donald Trump. Id. ¶
21.
The videographer for the first video assigned the rights to
Freedomnews.tv (“FNTV”), which in turn registered the first
video with the United States Copyright Office (“USCO”) on May 4,
2022, under Registration No. PA 2-354-255. Id. ¶¶ 14, 17-18.
Similarly, the videographer for the second video assigned her
rights to FNTV, which then registered the second video with the
USCO on April 19, 2022, under Registration No. PA 2-354-298. Id.
¶¶ 21, 24-25. On June 6, 2023, FNTV assigned all of its rights,
title, and interest to the two videos to the plaintiff. Id. ¶
28.
Defendants Peacock and NBC subsequently made a documentary
about the Giuliani press conference and its effects on the Four
Seasons Total Landscaping Company using segments of the
plaintiff’s videos. Id. ¶¶ 40-41, 45, 46-49, 53-55. This
documentary aired on Peacock on November 7, 2021. Id. ¶ 40. At
about the same time, NBC aired a program that incorporated parts
of the Peacock documentary and discussed the making of that
documentary. Id. ¶ 48.
II.
In deciding a Rule 12(b)(6) motion to dismiss for failure
to state a claim, the Court must accept the allegations in the
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complaint as true and draw all reasonable inferences in the
plaintiff’s favor. 1 McCarthy v. Dun & Bradstreet Corp., 482 F.3d
184, 191 (2d Cir. 2007). The Court’s function on a motion to
dismiss is “not to weigh the evidence that might be presented at
a trial but merely to determine whether the complaint itself is
legally sufficient.” Goldman v. Belden, 754 F.2d 1059, 1067 (2d
Cir. 1985).
The Court should not dismiss the complaint if the
plaintiff’s complaint includes “enough facts to state a claim to
relief that is plausible on its face.” Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 570 (2007). “A claim has facial
plausibility when the plaintiff pleads factual content that
allows the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged.” Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009). While the Court should construe
the factual allegations in the light most favorable to the
plaintiff, the Court does not need to “accept as true” the
plaintiff’s legal conclusions. Id.
When presented with a motion to dismiss, the Court may
consider documents attached to or referenced in the complaint,
documents that the plaintiff either possessed or knew about and
relied on in bringing the lawsuit, or matters of which judicial
Unless otherwise noted, this Memorandum Opinion and Order omits all internal
alterations, citations, footnotes, and quotation marks in quoted text.
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notice may be taken. See Taylor v. Vt. Dep’t of Educ., 313 F.3d
768, 776 (2d Cir. 2002); Chambers v. Time Warner, Inc., 282 F.3d
147, 153 (2d Cir. 2002).
III.
The defendants argue that their use of the plaintiff’s
video clips constitutes fair use. See Defs.’ Mem. at 10, ECF No.
22. Under the Copyright Act of 1976, fair use is a complete
defense to a claim of copyright infringement. See 17 U.S.C. §
107. In applying the fair use doctrine, courts seek:
to strike a balance between an artist’s intellectual
property rights to the fruits of her own creative labor,
including the right to license and develop (or refrain
from licensing or developing) derivative works based on
that creative labor, and the ability of other authors,
artists, and the rest of us to express them- or ourselves
by reference to the works of others.
Andy Warhol Found. for Visual Arts, Inc. v. Goldsmith, 11 F.4th
26, 36 (2d. Cir. 2021) (quoting Blanch v. Koons, 467 F.3d 244,
250 (2d Cir. 2006)), aff’d sub nom. Andy Warhol Found. for the
Visual Arts, Inc. v. Goldsmith, 598 U.S. 508 (2023).
The Copyright Act provides a non-exhaustive list of four
factors that courts are to consider in making a fair use
determination:
(1) the purpose and character of the use, including
whether such use is of a commercial nature or is for
nonprofit educational purposes;
(2) the nature of the copyrighted work;
(3) the amount and substantiality of the portion used in
relation to the copyrighted work as a whole; and
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(4) the effect of the use upon the potential market for
or value of the copyrighted work.
17 U.S.C. § 107. “[F]air use presents a holistic, contextsensitive inquiry not to be simplified with bright-line rules.
All four statutory factors are to be explored, and the results
weighed together, in light of the purposes of copyright.” Warhol
Found., 11 F.4th at 37 (quoting Campbell v. Acuff-Rose Music,
Inc., 510 U.S. 569, 577-78 (1994)).
Fair use involves a mixed question of law and fact, and
because fair use is an affirmative defense, the defendants bear
the ultimate burden of proving that the fair use factors balance
in their favor. See id. at 36, 49. Fair use is also a factintensive inquiry. As a result, it rarely appropriate for a
court to make a determination of fair use at the motion to
dismiss stage. See Graham v. Prince, 265 F. Supp. 3d 366, 377,
379 (S.D.N.Y. 2017) (“[I]t is conceivable —albeit highly
unlikely—that a fair use affirmative defense can be addressed on
a motion to dismiss[.]” (citing TCA Television Corp. v.
McCollum, 839 F.3d 168, 178 (2d Cir. 2016))). The Court
therefore “reviews defendants’ allegedly infringing uses . . .
by considering the four fair use factors in light of the factual
allegations of the [Amended] Complaint and its exhibits.” Id. at
379.
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A.
The first fair use factor addresses “the purpose and
character of the use, including whether such use is of a
commercial nature or is for nonprofit educational purposes[.]”
17 U.S.C. § 107(1). This factor asks if the new work is
transformative, “add[ing] something new,” or if it “merely
supersedes the objects of the original creation . . . .” Warhol
Found., 598 U.S. at 527-28. “Although transformative use is not
absolutely necessary for a finding of fair use, transformative
works lie at the heart of the fair use doctrine, and a use of
copyrighted material that merely repackages or republishes the
original is unlikely to be deemed fair use.” Fox News Network,
LLC v. TVEyes, Inc., 883 F.3d 169, 176-77 (2d Cir. 2018).
A secondary work’s transformative nature “is a matter of
degree,” which “must be weighed against other considerations,
like commercialism.” Warhol Found., 598 U.S. at 525. A work’s
“commercialism weighs against a finding of fair use.” Ferdman v.
CBS Interactive Inc., 342 F. Supp. 3d 515, 531 (S.D.N.Y. 2018).
As a threshold matter, the defendants argue that, because
they used the plaintiff’s videos in a “documentary,” the
defendants’ use “fall[s] within the protected categories of
section 107 and [is] entitled to the presumption that the use of
the copyrighted material is fair.” Defs.’ Mem. at 10. The
defendants wield the term “documentary” as though it were a
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talisman that forgives all copying. However, this is not a case
where the documentary “provide[d] commentary about” the videos
in question. Ferdman, 342 F. Supp. 3d at 534; see also Barcroft
Media, Ltd. v. Coed Media Grp., LLC, 297 F. Supp. 3d 339, 352
(S.D.N.Y. 2017) (noting that commentary constitutes a
transformative use only where that commentary is “about that
work”). Rather, the documentary used the plaintiff’s videos as
illustrative aids as they “profile[d] a small business owner
and . . . explore[d] the manner in which a political event
unexpectedly almost caused her business to fail.” Defs.’ Mem. at
13. Defendants lose the presumption of transformative use
usually afforded to commentary or news stories where, as here,
“the use is merely to provide an illustrative aid depicting a
person or event described in the [work].” Whiddon v. Buzzfeed,
Inc., 638 F. Supp. 3d 342, 351 (S.D.N.Y. 2022).
The defendants could have substituted videos taken by
others at the news conference. Copying the plaintiff’s videos
was therefore not “reasonably necessary to achieve [the
defendants’] new purpose.” Warhol Found., 598 U.S. at 511. They
simply used the plaintiff’s videos without paying for their use
to illustrate the subject matter of the documentaries. If this
were permitted, it would undercut the market for news
photographers and videographers. See Barcroft, 297 F. Supp. 3d
at 352 (“[The defendant’s] argument, if accepted, would
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eliminate copyright protection any time a copyrighted [work] was
used in conjunction with a news story about the subject of that
[work]. That is plainly not the law.”).
Second, the defendants argue that the commercial nature of
their videos should not weigh against a finding of fair use
because “many of the most universally accepted forms of fair use
. . . are all normally done commercially for profit.” Defs.’
Reply at 5, ECF No. 25 (quoting Authors Guild v. Google, Inc.,
804 F.3d 202, 219 (2d Cir. 2015)). They further argue that forprofit use “bears less weight” when “a defendant’s use is
transformative[.]” Id. (citing Walsh v. Townsquare Media, Inc.,
464 F. Supp. 3d 570, 585 (S.D.N.Y. 2020)). But the defendants
have not shown that their use is transformative. They seemingly
used portions of the plaintiff’s videos in the defendants’
programs without changing those portions. In any event, “[t]he
commercial nature of the use is not dispositive.” Warhol Found.,
598 U.S. at 531.
In summary, several questions of fact remain about the
purpose behind the defendants’ use of the plaintiff’s videos and
the norms of video copying within the news industry. The
defendants have therefore failed to show that their use is
transformative, and the first fair use factor does not weigh in
their favor.
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B.
The second fair use factor does not “help much in
separating the fair use sheep from the infringing goats,” as is
typical in cases involving allegedly transformative copying.
Campbell, 510 U.S. at 586; see also Authors Guild, 804 F.3d at
220 (“The second factor has rarely played a significant role in
the determination of a fair use dispute.”). This factor directs
courts to consider “the nature of the copyrighted work,
including (1) whether it is expressive or creative or more
factual, with greater leeway being allowed to a claim of fair
use where the work is factual or informational, and (2) where
the work is published or unpublished, with the scope of fair use
involving unpublished works being considerably narrower.” Warhol
Found., 11 F.4th at 45 (quoting Blanch, 467 F.3d at 256).
In this case, these sub-factors point in opposing
directions. The first cuts in favor of the plaintiff. The
videographers’ clips “reflect[] [their] artistic choices of
camera angle, exposure settings, and video length,” suggesting
that these works have at least some creative ingredients. See
Nicklen v. Sinclair Broad. Grp., 551 F. Supp. 3d 188, 197
(S.D.N.Y. 2021); see also Am. Compl. ¶¶ 15-16, 22-23. The second
sub-factor cuts in the other direction. The videos “purport[] to
depict reality and [were] made publicly available before the
challenged use.” Nicklen, 551 F. Supp. 3d at 197; see also Am.
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Compl. ¶¶ 19-20, 26-27. On balance, it is therefore unclear
whether the works were “created for news gathering or other nonartistic purposes[,]” or whether they were created for other
expressive aims.” N. Jersey Media Grp. Inc. v. Pirro, 74 F.
Supp. 3d 605, 620 (S.D.N.Y. 2015). The second fair use factor
therefore favors neither the plaintiff nor the defendants.
C.
The third fair use factor considers “the amount and
substantiality of the portion used in relation to the
copyrighted work as a whole[.]” 17 U.S.C. § 107(3). “In
assessing this factor, [the court] consider[s] not only the
quantity of the materials used but also their quality and
importance in relation to the original work.” Warhol Found., 11
F.4th at 45-46.
The defendants argue that their use of the plaintiff’s
videos was “exceedingly narrow;” the defendants used one minute
of the combined 11-minute length of the plaintiff’s two videos
in the defendants’ 29-minute documentary. Defs.’ Mem. at 2. The
defendants further argue that the documentary uses only as much
of the plaintiff’s footage as is necessary to depict the “events
that the subjects describe—allowing viewers to understand what
the subjects saw and experienced at the time.” Id. at 4. But
here, the defendants again fail to explain why they had to use
the plaintiff’s videos to illustrate the event in their
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documentary. As discussed above regarding the first factor, the
defendants could have used videos taken by others at the news
conference. Instead, they copied “the heart” of the plaintiff’s
videos: the scenes of the news conference, and of clashes
between supporters for Joe Biden and supporters for Donald
Trump. See NXIVM Corp. v. Ross Inst., 364 F.3d 471, 480 (2d Cir.
2004). Because there is no apparent justification for this
copying, the third factor favors the plaintiffs. See TCA
Television, 839 F.3d at 185 (“Even a substantial taking . . .
can constitute fair use if justified . . . [b]ut . . .
defendants offer no persuasive justification for their extensive
use of [the plaintiff’s work].”).
D.
The fourth and final fair use factor asks “whether, if the
challenged use becomes widespread, it will adversely affect the
potential market for the copyrighted work.” Warhol Found., 11
F.4th at 48. This factor also instructs the court to consider
whether “unrestricted and widespread conduct of the sort engaged
in by [the defendants] would result in a substantially adverse
impact on the potential market” for the plaintiff’s videos. Id.
at 49.
The defendants correctly note that this factor asks not
whether the second work would damage the market for the
first, but whether the second work would usurp the market for
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the first by offering a competing substitute. See Defs.’ Mem. at
15 (citing Grant v. Trump, 563 F. Supp. 3d 278, 288 (S.D.N.Y.
2021)). The defendants are also correct that the documentary
will not serve as a satisfactory substitute for the videos
themselves. Id. at 16. Critically, however, the fourth fair use
factor considers “both the primary market for the work and any
derivative markets that exist or that its author might
reasonably license others to develop, regardless of whether the
particular author claiming infringement has elected to develop
such markets.” Warhol Found., 11 F.4th at 48 (citing Salinger v.
Colting, 607 F.3d 68, 74, 83 (2d Cir. 2010)).
While the defendants assert that “a finding of fair use
would have no adverse impact on the market” for the plaintiff’s
videos, Defs.’ Reply at 10, they ignore that their use of the
plaintiff’s videos would threaten the plaintiff’s licensing
markets. The issue is whether “unrestricted and widespread
conduct of the sort engaged in by [the defendants] would result
in a substantially adverse impact on the potential [licensing]
market.” Warhol Found., 11 F.4th at 48 (quoting Campbell, 510
U.S. at 590). In this case, “widespread, uncompensated use” of
the plaintiff’s videos “would embolden would-be infringers and
undermine [the plaintiff’s] ability to obtain compensation in
exchange for licensing” them. Grant, 563 F. Supp. 3d at 289; see
also Campbell, 510 U.S. at 593 (noting that evidence of
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