Eliahu v. Mediaite, LLC

Filing 35

DECISION AND ORDER denying 31 Motion to Dismiss. For the foregoing reasons, it is hereby ORDERED that the motion of defendant Mediaite, LLC ("Mediaite") to dismiss the Amended Complaint of plaintiff Elaad Eliahu (Dkt. No. 31) is DENIED; and it is further ORDERED that Mediaite shall answer the Amended Complaint within 21 days of the date of this Order. The Clerk of Court is respectfully directed to close the Motion entered at Dkt. No. 31.. (Signed by Judge Victor Marrero on 9/23/2024) (jca)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
ELAAD ELIAHU,

09/23/24
Plaintiff,

- against -

23 Civ. 11015 (VM)

MEDIAITE, LLC,

DECISION AND ORDER
Defendant.

VICTOR MARRERO, United States District Judge.
Plaintiff Elaad Eliahu (“Eliahu”) brings this action
against

defendant

Mediaite,

LLC

(“Mediaite”),

alleging

copyright infringement in violation of 17 U.S.C. § 501. (See
Amended Complaint (“Am. Compl.”), Dkt. No. 21.) Now before
the

Court

Complaint

is

Mediaite’s

pursuant

to

Motion

Federal

to
Rule

Dismiss
of

the

Civil

Amended

Procedure

12(b)(6) (“Rule 12(b)(6)”). (See Dkt. No. 31.) For the reasons
discussed below, Mediaite’s Motion is DENIED.
I. BACKGROUND1
Eliahu is a photo- and video-journalist. On or about May
19, 2023, Eliahu attended the funeral of nonparty Jordan Neely
(“Neely”), a New Yorker whose death on May 1, 2023, has been
the subject of widespread public discourse in New York and
1 Except as otherwise noted, the following background derives from the
Amended Complaint. The Court takes all facts alleged therein as true and
construes all justifiable inferences arising therefrom in the light most
favorable to the plaintiff, as required under the standard set forth below
in Section II.

1

around the United States.2 After the funeral, Eliahu captured
a fifteen-second video (the “Video”) of United States House
of Representatives Member Alexandria Ocasio-Cortez (“OcasioCortez”) commenting on Neely’s death. The same day, Eliahu
licensed the Video to nonparty TimCast News for the purpose
of public display and distribution. Eliahu later registered
the Video with the United States Copyright Office on July 27,
2023.
Defendant Mediaite is a for-profit news organization
that

covers

media

www.mediaite.com.
article

(the

On

and
May

“Article”)

politics
19,

2023,

on

its

Mediate

reporting

on

website,

published

an

Ocasio-Cortez’s

comments. The Article included an image alleged to be a
screenshot (the “Screenshot”) of a single frame from Eliahu’s
Video. Eliahu alleges that he never licensed any use of the
Video to Mediaite.
Eliahu

notified

Mediaite

on

July

10,

2024,

of

the

allegedly infringing use of the Video in an effort to resolve
this matter without litigation. Having reached no resolution,
Eliahu filed this suit on December 20, 2023. After an exchange
of pre-motion letters pursuant to this Court’s Individual
Practices (see Dkt. Nos. 25, 26, 27), Mediate made its Motion
2

See, e.g., Emma G. Fitzsimons and Maria Cramer, A Subway Killing Stuns,
and Divides, New Yorkers, N.Y. Times, May 4, 2023, www.nytimes.com/
2023/05/04/nyregion/jordan-neely-death-subway-nyc.html.

2

to Dismiss the Amended Complaint (see Dkt. No. 31) supported
by a memorandum of law (see Dkt. No. 32 [herein “Def. Mem.”]).
Eliahu thereafter filed a response (see Dkt. No. 33 [herein
“Pl. Mem.”]), to which Mediate replied (see Dkt. No. 34
[herein “Def. Reply Mem.”]).
II.

LEGAL STANDARD

“To survive a motion to dismiss, a complaint must contain
sufficient factual matter, accepted as true, to ‘state a claim
to relief that is plausible on its face.’” Ashcroft v. Iqbal,
556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly,
550 U.S. 544, 570 (2007)). “The assessment of whether a
complaint’s factual allegations plausibly give rise to an
entitlement

to

relief

‘does

not

impose

a

probability

requirement at the pleading stage; it simply calls for enough
fact to raise a reasonable expectation that discovery will
reveal evidence of illegal’ conduct.” Lynch v. City of New
York, 952 F.3d 67, 75 (2d Cir. 2020) (quoting Twombly, 550
U.S. at 556); see Iqbal, 556 U.S. at 678 (“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.”).
In determining whether a complaint states a claim that
is plausible, courts must “give no effect to assertions of
law or to legal conclusions couched as factual allegations,
3

but [must] accept as true the factual allegations of the
complaint, and construe all reasonable inferences that can be
drawn from the complaint in the light most favorable to the
plaintiff.” Anderson News, L.L.C. v. Am. Media, Inc., 680
F.3d 162, 185 (2d Cir. 2012) (quotation marks, alterations,
and citations omitted); see Iqbal, 556 U.S. at 678.
III. DISCUSSION
“The owner of a copyright has the exclusive right to —
or to license others to — reproduce, perform publicly, display
publicly, prepare derivative works of, and distribute copies
of, his copyrighted work.” Arista Records, LLC v. Doe 3, 604
F.3d 110, 117 (2d Cir. 2010) (citing 17 U.S.C. § 106). “In
order to establish a claim of copyright infringement, a
plaintiff

with

a

valid

copyright

must

demonstrate

that:

(1) the defendant has actually copied the plaintiff’s work;
and

(2)

the

similarity
protectible

copying

exists

is

between

elements

of

illegal
the

because

defendant’s

plaintiff’s.”

a

substantial

work

Peter

and
F.

the

Gaito

Architecture, LLC v. Simone Development Corp., 602 F.3d 57,
63 (2d Cir. 2010) (quoting Hamil Am. Inc. v. GFI, 193 F.3d
92, 99 (2d Cir. 1999)). No party here disputes that Eliahu

4

owns a valid copyright to the Video and that Mediaite copied
the Screenshot from Eliahu’s Video.
Mediate instead argues that its use of the Video is not
actionable

for

two

independent

reasons.

First,

Mediaite

contends that the Screenshot was merely de minimis use of the
Video,

and

therefore

no

“substantial

similarity”

exists

between the two works at issue in this case. Peter F. Gaito
Architecture, 602 F.3d at 63. (See also Def. Mem. at 6-8.)
Second, Mediaite argues that, even if actionable copying has
occurred, publication of the Screenshot is protected by the
doctrine of fair use, codified at 17 U.S.C. § 107.3 (See Def.
Mem. at 8-18.) For the reasons described below, the Court
rejects both arguments.
A. DE MINIMIS USE
As

an

essential

element

of

copyright

infringement,

“substantial similarity” requires that a defendant’s alleged
copying is “quantitatively and qualitatively sufficient to
support

the

legal

conclusion

that

infringement . . . has

occurred.” Ringgold v. Black Entm’t Television, Inc., 126

3

Mediaite also argues that the Amended Complaint is deficient with
respect to Eliahu’s allegations of willful copyright infringement. The
Court declines to dismiss the portion of Eliahu’s Amended Complaint that
alleges willful infringement. “Malice, intent, knowledge, and other
conditions of a person’s mind may be alleged generally,” Fed. R. Civ. P.
9(b), and the Court must accept such allegations as true, see Anderson
News, 680 F.3d at 185. Whether or not the alleged copyright infringement
was willful raises a factual dispute to be decided upon a full record.

5

F.3d

70,

75

(2d

Cir.

1997).

“To

establish

that

the

infringement of a copyright is de minimis, and therefore not
actionable, the alleged infringer must demonstrate that the
copying of the protected material is so trivial ‘as to fall
below the quantitative threshold of substantial similarity.’”
Sandoval v. New Line Cinema Corp., 147 F.3d 215, 217 (2d Cir.
1998) (quoting Ringgold, 126 F.3d at 74). In other words,
“[t]he de minimis doctrine essentially provides that where
unauthorized copying is sufficiently trivial, ‘the law will
not impose legal consequences.’” Davis v. The Gap, Inc., 246
F.3d 152, 172 (2d Cir. 2001) (quoting Ringgold, 126 F.3d at
74).
To determine whether the alleged copying in this case
falls

below

the

quantitative

threshold

of

substantial

similarity, the Court must evaluate whether “an average lay
observer would recognize the alleged copy as having been
appropriated from the copyrighted work.” Knitwaves, Inc. v.
Lollytogs Ltd., 71 F.3d 996, 1001 (2d Cir. 1995); see also
Sandoval, 147 F.3d at 218; Ringgold, 126 F.3d at 77. Factors
relevant

to

copyrighted
observability

this
work
of

inquiry
that
the

include

was

“the

copied”

copyrighted

work

as
in

amount
well
the

of
as

the
“the

allegedly

infringing work.” Sandoval, 147 F.3d at 217. Observability,
in turn, includes review of the “focus” and “prominence” of
6

copyrighted

material

in

the

allegedly

infringing

work.

Ringgold, 126 F.3d at 75.
“[B]ecause
typically
questions

the

presents
of

question
an

of

extremely

non-infringement

substantial
close

have

similarity

question

of

fact,

traditionally

been

reserved for the trier of fact.” Peter F. Gaito Architecture,
602 F.3d at 63 (citation omitted). In circumstances where two
works are “not substantially similar as a matter of law,” or
where “no reasonable jury, properly instructed, could find
that

the

two

works

are substantially similar,”

it

is

sometimes appropriate for a court to dismiss a copyright
infringement

action

on

a

motion

under

Rule

12(b).

Id.

(quotation marks omitted) (collecting cases). This, however,
is not such a case.
The Court concludes it is plausible that “an average lay
observer would recognize the alleged copy as having been
appropriated from the copyrighted work.” Knitwaves, Inc., 71
F.3d at 1002; see Sandoval, 147 F.3d at 218; Ringgold, 126
F.3d at 77. Here, the Screenshot occupied a prominent place
in Mediaite’s Article, appearing just below the Article’s
headline but before the Article’s body text. (See Ex. 2 to
Am. Compl.) The Screenshot was the only image that Mediate
used to illustrate the Article, and the Screenshot was visible

7

to the Article’s readers for the entire time the Article was
displayed on the readers’ screens. (See id.)
That Mediaite allegedly copied just a small fragment of
Eliahu’s original work is relevant to — but not dispositive
of — the substantial similarity inquiry. (See Def. Mem. at 67.) As Eliahu notes, Mediaite’s Screenshot captures the one
distinctive
moreover,

moment

the

depicted

Screenshot

is

in
a

Eliahu’s

prominent

short
feature

Video;
of

the

Article. (See Pl. Mem. at 6.) Both of these facts support the
plausible conclusion that a lay observer would view the
Mediaite Article as an appropriation of Eliahu’s Video. See
Hirsch v. Complex Media, Inc., 18 Civ. 5488, 2018 WL 6985227,
at

*3

(S.D.N.Y.

Dec.

10,

2018)

(finding

infringement

liability where a copyrighted photo appeared prominently in
an online news video for two seconds); see also Ringgold, 126
F.3d

at

77

(same,

where

a

copyrighted

poster

appeared

prominently in the background of a television show for twentysix seconds); cf. Sandoval, 147 F.3d at 218 (finding de
minimis use where copied images were “out of focus” and
“displayed only briefly” in the background of a featurelength film); Gottlieb Dev. LLC v. Paramount Pictures Corp.,
590 F. Supp. 2d 625, 632-33 (S.D.N.Y. 2008) (similar).
Mediaite relies on Rudkowski v. MIC Network, Inc. to
challenge these conclusions. 17 Civ. 3647, 2018 WL 1801307
8

(S.D.N.Y. Mar. 23, 2018). (See also Def. Mem. at 7; Def. Reply
Mem. at 2-3.) As in this case, the defendant in Rudkowski was
accused of copyright infringement for publishing a screenshot
from a copyrighted video. 2018 WL 1801307, at *1. Though the
facts of Rudkowski are virtually indistinguishable from those
at

issue

this

case,

this

Court

finds

Rudkowski’s

interpretation of the applicable case law unpersuasive. See
id. at *4.
The court in Rudkowski declined to follow the Second
Circuit’s guidance in Ringgold, which in turn holds that
observability and prominence are critically important factors
in the de minimis use analysis. See 2018 WL 1801307, at *4
(distinguishing Ringgold, 126 F.3d at 72-73). Rudkowski held
that the principles set forth in Ringgold may be set aside as
“factually inapposite” because the allegedly infringing work
was a “still photograph, rather than a video.” 2018 WL
1801307, at *4. However, this Court does not discern any
principled reason why Ringgold can be disregarded when an
alleged infringer has published a photograph, as opposed to
a video. See Ringgold, 126 F.3d at 75 (instructing courts to
look to observability and prominence “[i]n cases involving
visual works,” not just video works). This Court’s review of
the relevant case law has not found any other decision that
distinguishes Ringgold in this way. See, e.g., Kelley v.
9

Morning Bee, Inc., 21 Civ. 8420, 2023 WL 6276690, at *5-6
(S.D.N.Y. Sept. 26, 2023) (applying Ringgold to allegedly
infringing photographs and collecting cases); Hirsch, 2018 WL
6985227, at *3-4 (same).
Accordingly, based on the facts alleged in the Amended
Complaint, the Court concludes that Mediaite’s Screenshot
does not constitute a de minimis use of Eliahu’s Video.
B. FAIR USE
“The law has long recognized that ‘some opportunity for
fair use of copyrighted materials’ is necessary to promote
progress

in

science

and

art.”

TCA

Television

Corp.

v.

McCollum, 839 F.3d 168, 178 (2d Cir. 2016) (quoting Campbell
v. Acuff-Rose Music, Inc., 510 U.S. 569, 575 (1994)). Four
non-exclusive factors bear on whether there has been a “fair
use” of copyrighted work: “(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 (4) the effect of the use upon the potential market
for or value of the copyrighted work.” 15 U.S.C. § 107; see
also

Andy

Warhol

Found.

for

the

Visual

Arts,

Goldsmith, 598 U.S. 508, 527 (2023) (“Warhol IV”).

10

Inc.

v.

“All four statutory factors are to be explored, and the
results

weighed

together,

in

light

of

the

purposes

of

copyright.” Andy Warhol Found. for Visual Arts, Inc. v.
Goldsmith, 11 F.4th 26, 37 (2d Cir. 2021) (“Warhol III”)
(citation,

quotation

marks,

and

alterations

omitted).

Ultimately, the “test of fair use is whether the copyright
law’s goal of promoting the Progress of Science and useful
Arts would be better served by allowing the use than by
preventing it.” Otto v. Hearst Commc’ns, Inc., 345 F. Supp.
3d 412, 426 (S.D.N.Y. 2018) (quoting Castle Rock Entm’t, Inc.
v. Carol Publ’g Grp., Inc., 150 F.3d 132, 141 (2d Cir. 1998)).
Because the fair use determination comprises an “openended and context-sensitive inquiry,” the factfinder in a
typical

case

decides

questions

of

fair

use

on

a

fully

developed record. Cariou v. Prince, 714 F.3d 694, 705 (2d
Cir. 2013); see TCA Television Corp., 839 F.3d at 178.
However,

it

is

possible

that

fair

use

is

“so

clearly

established by a complaint as to support dismissal of a
copyright

infringement

claim”

on

the

pleadings.

TCA

Television Corp., 839 F.3d at 178; see Grant v. Trump, 563 F.
Supp. 3d 278, 284 (S.D.N.Y. 2021) (“Because fair use is a
fact-intensive inquiry, it is rarely appropriate for a court
to make a determination of fair use at the motion to dismiss
stage.”).
11

Mediaite insists that the Amended Complaint clearly
establishes

fair

use

because

Mediaite

published

the

Screenshot in the context of news reporting. However, “news
reporting is specifically named in 17 U.S.C. § 107 as a
potential method of fair use.” Otto, 345 F. Supp. 3d at 427
(emphasis added). “[A] news reporting purpose by no means
guarantees a finding of fair use.” Swatch Grp. Mgmt. Servs.
Ltd. v. Bloomberg L.P., 756 F.3d 73, 85 (2d Cir. 2014)
(quoting Harper & Row Publishers, Inc. v. Nation Enters., 471
U.S. 539, 557 (1985)). Indeed, “[t]he promise of copyright
would be an empty one if it could be avoided merely by dubbing
the infringement a fair use ‘news report.’” Id. (quoting
Harper & Row, 471 U.S. at 557). Accordingly, the Court
considers each fair use factor in kind and concludes that the
Amended Complaint does not establish a fair use defense
sufficient to support dismissal.
1. Purpose and Character of the Use
The first fair-use factor considers the “purpose and
character of the use,” § 107(1), and is “the heart of the
fair use inquiry,” Cariou, F.3d at 705 (quoting Blanch v.
Koons, 467 F.3d 244, 251 (2d Cir. 2006)). “The central
question” of the first fair-use factor is “whether the new
work merely supersedes the objects of the original creation
(supplanting the original), or instead adds something new,
12

with a further purpose or different character.” Warhol IV,
598 U.S. at 528 (alterations and quotation marks omitted). To
answer that central question, courts in this Circuit look to
“the extent to which the [new] work is ‘transformative’ as
well as whether it is commercial.” Warhol III, 11 F.4th at
37.
“A use that has a further purpose or different character
is said to be ‘transformative,’” which is “a matter of
degree.”

Warhol

IV,

598

U.S.

at

529.

“The

larger

the

difference, the more likely the first factor weighs in favor
of fair use. The smaller the difference, the less likely.”
Id. “If an original work and a secondary use share the same
or highly similar purposes, and the secondary use is of a
commercial nature, the first factor is likely to weigh against
fair use, absent some other justification for copying.” Id.
at 532-33. In other words, a transformative use must do
“something more than repackage or republish the original
copyrighted work.” Author’s Guild, Inc. v. HathiTrust, 755
F.3d 87, 96 (2d Cir. 2014); see Ferdman v. CBS Interactive,
Inc., 342 F. Supp. 3d 515, 532 (S.D.N.Y. 2018).
In this case, the Screenshot has no “further purpose” or
“different character” from Eliahu’s Video. Warhol IV, 598
U.S. at 528. Both were created for a journalistic purpose: to
document political discourse following Jordan Neely’s death,
13

specifically by visually depicting one moment when OcasioCortez contributed to that discourse. (See Am. Compl. ¶ 16
(describing

Eliahu’s

funeral . . . for

intention

purposes

of

to

“document

the

news

reporting

and

commentary”); cf. Def. Mem. at 10 (describing Mediaite’s
intention to “provide additional commentary and reporting” on
Neely’s death and describing the purpose of the Screenshot as
“journalistic”).)
Still, Mediaite contends that its use of the Screenshot
is transformative because the Mediaite Article described “the
larger incident” and “provide[d] more background and context”
than Eliahu’s Video. (Def. Mem. at 15.) The Court finds that,
in

these

circumstances

where

the

original

work

and

the

secondary use concern the same subject matter, the addition
of contextual information does not change the work’s purpose
or character. Warhol IV, 598 U.S. at 541 (rejecting the notion
that “any use that adds some new expression, meaning, or
message” is transformative fair use); Ferdman, 342 F. Supp.
3d

at

532-33

transformative

(holding
where

it

copyrighted

images

and

litigation

does

not

that

a

news

republished
added

article
a

explanatory

reflect

the

was

not

photographer’s
text).

This

quintessential

transformative-use case where Mediaite has made a comment on
or criticism of Eliahu’s reporting. Cf. Schwartzwald v. Oath,
14

Inc., 19 Civ. 9938, 2020 WL 5441291, at *4 (S.D.N.Y. Sept.
10, 2020) (finding fair use when a website copied a news photo
to “mock” the photo’s subject);

Yang v. Mic Network, Inc.,

405 F. Supp. 3d 537, 543 (S.D.N.Y. 2019) (“If a photograph is
merely used as an illustrative aid that depicts the subjects
described

in

an

article,

transformative

use.”

omitted)).

All

that

republish”

the

Video

this

(alterations
Mediaite
in

the

does
and

has

done

form

of

not

quotation
is

a

constitute
marks

“repackage

static

image

or
to

illustrate its Article. HathiTrust, 755 F.3d at 96; see Warhol
IV, 598 U.S. at 529.
“The first fair use prong also requires an analysis of
whether the use was commercial.” O’Neil v. Ratajkowski, 563
F. Supp. 3d 112, 129 (S.D.N.Y. 2021). “The crux of the
profit/nonprofit distinction is . . . whether the user stands
to profit from exploitation of copyrighted material without
paying the customary price.” Otto, 345 F. Supp. 3d at 429
(quoting Harper & Row, 471 U.S. at 562). Mediaite used an
image from Eliahu’s Video without permission or licensure.
Especially where Eliahu asserted that he licensed his Video
to another news organization for a fee (and Mediaite did not
pay that fee), it is evident that Mediaite stands to gain
commercially from its use of the Screenshot “without paying
the customary price.” Id.
15

The Court accordingly finds the first factor weighs
strongly against fair use.
2. Nature of the Copyrighted Work
The

Copyright

Act

specifies

that

the

next

relevant

factor to fair use is “the nature of the copyrighted work.”
17 U.S.C. § 107(2). To evaluate this factor, the Court must
determine “(1) whether [the copyrighted work] is ‘expressive
or creative . . . or more factual, with a greater leeway being
allowed to a claim of fair use where the work is factual or
informational, and (2) whether the work is published or
unpublished, with the scope of fair use involving unpublished
works being considerably narrower.’” Warhol III, 11 F.4th at
45 (quoting Blanch, 467 F.3d at 256). However, this “second
factor

has

rarely

played

a

significant

role

in

the

determination of a fair use dispute.” Authors Guild v. Google,
Inc., 804 F.3d 202, 220 (2d Cir. 2015).
The Video is a published, factual work. Even if Eliahu
“selected

the

subject

matter,

timing,

lighting,

angle,

perspective, depth, lens and camera equipment used to capture
the [V]ideo” (see Am. Compl. ¶ 18), it is not plausible that
he had control over the newsworthy contents of the video –
namely, Ocasio-Cortez’s words and actions, see Hirsch, 2018
WL 6985227, at *7 (collecting cases and noting that “[c]ourts
in the Second and other Circuits have found that, when the
16

original photographic work was created for news-gathering
purposes, this factor favors fair use”).
Accordingly, the second factor weighs in favor of fair
use.
3. Amount and Substantiality of the Use
The third factor in the fair-use analysis considers “the
amount and substantiality of the portion used in relation to
the copyrighted work as a whole.”4 17 U.S.C. § 107(3); see
also Warhol III, 11 F.4th at 45. In assessing this factor,
the Court considers “not only the quantity of the materials
to be used but also their quality and importance in relation
to

the

original

work.”

Warhol

III,

11

F.4th

at

45-46

(quotation marks omitted). “The ultimate question under this
factor is whether ‘the quantity and value of the materials
used

are

reasonable

in

relation

to

the

purpose

of

the

copying.’” Id. at 46 (quoting Campbell, 510 U.S. at 586).
Mediaite argues that this factor must weigh in favor of
fair use because the Screenshot “constitutes only a small

4

This fair-use factor is “both analytically and substantively distinct
from the de minimis analysis.” Hirsch, 2018 WL 6985227, at *7. “The de
minimis doctrine essentially provides that where unauthorized copying is
sufficiently trivial, ‘the law will not impose legal consequences.’”
Davis, 246 F.3d at 172 (quoting Ringgold, 126 F.3d at 74). By comparison,
there is no threshold amount of copying that becomes fair use as a matter
of law, no matter how trivial; the amount and substantiality of copying
is just one factor to be considered among others in deciding whether
otherwise-actionable copying was fair. Ringgold, 126 F.3d at 75-76
(“Though the concept of de minimis is useful in insulating trivial types
of copying from liability . . . the concept is an inappropriate one to be
enlisted in fair use analysis.”).

17

fragment of the larger video.” (Def. Mem. at 16.) Admittedly,
the Screenshot is quantitatively small – just one frame of
the Video, without any audio. However, as discussed above,
the Screenshot captures the key moment of Eliahu’s short
Video, in which Ocasio-Cortez’s demeanor is clearly visible
as

she

makes

“importance

in

her

comments.

relation

Considering

to

the

original

the

Screenshot’s

work,”

Mediaite

appropriated the moment in the video with the most value to
potential readers or licensors. Warhol III, 11 F.4th at 46.
Both parties here make persuasive arguments; however,
each argument counteracts the other. Though Mediaite used a
lowest “quantity of materials” possible, it used the fragment
of the Video with the highest “quality and importance.” Warhol
III, 11 F.4th at 45-46. Accordingly, the third factor weighs
neither for nor against fair use.
4. Effect of the Use on the Market for the Original
The fourth factor under Section 107 asks “whether, if
the challenged use becomes widespread, it will adversely
affect the potential market for the copyrighted work.” Warhol
III, 11 F.4th at 48 (quotation marks omitted) (quoting Bill
Graham Archives v. Dorling Kindersley Ltd., 448 F.3d 605, 613
(2d Cir. 2006)). This factor asks “not whether the second
work would damage the market for the first (by, for example,
devaluing

it

through

parody
18

or

criticism),

but

whether

it usurps the market for the first by offering a competing
substitute.” Id. This factor is “necessarily intertwined”
with the first factor, as “the more the objective of the
secondary use differs from that of the original, the less
likely

it

will

supplant

the

commercial

market

for

the

original.” Capitol Recs., LLC v. ReDigi Inc., 910 F.3d 649,
662 (2d Cir. 2018).
The Court can plausibly infer that — if use of the
Screenshot “became a widespread practice” — the Screenshot’s
reproduction

would

usurp

Eliahu’s

market

for

sale

or

licensure of the Video. Warhol III, 11 F.4th at 50. The
Screenshot captures the key moment of Eliahu’s Video; readers
who see the Screenshot may no longer have a reason to seek
out a copy of the Video. Mediaite’s argument that Eliahu has
not pleaded facts to support damage to the market for the
Video cannot be credited at this stage of the litigation. The
Court must “construe all reasonable inferences that can be
drawn from the complaint in the light most favorable to the
plaintiff” on a motion to dismiss. Anderson News, 680 F.3d at
185. Moreover, “[f]air use is an affirmative defense; as such,
the ultimate burden of proving that the secondary use does
not compete in the relevant market is appropriately borne by
the party asserting the defense: the secondary user.” Warhol
III, 11 F.4th at 49 (citing Campbell, 510 U.S. at 590). It
19

will be Mediaite’s task in discovery to develop the facts to
support its argument on this factor.
Accordingly, the fourth factor weighs against fair use.
***
Considering all four fair-use factors together, the
Court concludes that the goals of copyright law would not “be
better served by allowing the use than by preventing it.”
Otto, 345 F. Supp. 3d at 426. The first and fourth fair-use
factors weigh heavily in favor of Eliahu. Mediaite did not
transform Eliahu’s original work, but rather published a new
work that largely supplants Eliahu’s original work. Moreover,
Mediaite’s

alleged

copying,

at

least

plausibly,

affects

Eliahu’s market for selling or licensing his work. The third
fair-use factor does not weigh in favor of either party’s
position, given that Mediaite allegedly copied just one brief
moment from the Video; nonetheless the moment that contains
much of the Video’s news value. Only the second fair-use
factor — which “has rarely played a significant role in the
determination of a fair use dispute” — tips in Mediaite’s
favor, given that the Video is an informational (rather than
expressive) work. Google, 804 F.3d at 220. Together, these
statutory factors do not support a finding of fair use.
Brief consideration of “the purposes of copyright law”
confirms this conclusion. 17 U.S.C. § 107. “[C] opyright (like
20

other forms of intellectual property) involves a tradeoff
between stimulating innovative activity, on the one hand, and
allowing follow-on innovation, on the other.” Warhol IV, 598
U.S. at 549. The rights afforded to Eliahu by the Copyright
Act incentivized him to attend the funeral of Jordan Neely
and record the commentary of public officials there. (See,
e.g., Am. Compl. ¶ 21.) Mediaite, evidently finding the Video
to have illustrative value for its readers, cannot freely
copy and publish Eliahu’s work in the name of fair use without
permission. Were all news sources permitted to do so, the
economic incentive to create these important journalistic
works in the first place would disappear. See Warhol IV, 598
U.S. at 549-50.
IV.

ORDER

For the foregoing reasons, it is hereby
ORDERED

that

the

motion

of

defendant

Mediaite,

LLC

(“Mediaite”) to dismiss the Amended Complaint of plaintiff
Elaad Eliahu (Dkt. No. 31) is DENIED; and it is further
ORDERED that Mediaite shall answer the Amended Complaint
within 21 days of the date of this Order.
The Clerk of Court is respectfully directed to close the
Motion entered at Dkt. No. 31.
Dated:

23 September 2024
New York, New York

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