Attorney Steve® Copyright Law Essentials - Background Music and Fair Use Law

Introduction

With the massive growth of online video (Instragram, YouTube, TikTok, Facebook and others), many people are posting videos for both personal and commercial (business) reasons.  Many videos will have music playing in the background – music which is typically subject to copyright protection.  When you post these videos, the social media platforms will have content filtering systems that usually check for copyrighted music, and if found, they may not post your video.  If they do post it, the music copyright holder may file a DMCA take-down notice, which can lead to your account getting a “strike.”  Too many strikes can lead to your account being taken down or cancelled.  But, what if you can argue in response that the music is just background music, and a fair use of the content?  Let's take a look at the case law in this area.

Issue

Is it a copyright violation to post a video on YouTube that has copyrighted music playing in the background?

Facts

A YouTube channel creator has a video channel of conversations he has with people on the streets, for example, he interviews people and posts the videos on YouTube social media platform.  At times, there is copyrighted music playing in the background and these are included in his videos.  The copyright holder wants to sue him for infringing their music by posting the clip with their music.  Is this copyright infringement or a fair use in the 9th circuit?

Conclusion

17 U.S.C. § 107 (2022) sets out four factors that courts should consider in determining whether a particular use is a fair use, namely, the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes; the nature of the copyrighted work; the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and, the effect of the use upon the potential market for or value of the copyrighted work. (17 U.S.C. § 107 (2022), Threshold Media Corp. v. Relativity Media, LLC, 166 F.Supp.3d 1011 (C.D. Cal. 2013))

These factors are weighed together in light of the copyright law's purpose to promote the progress of science and art by protecting artistic and scientific works while encouraging the development and evolution of new works. (Threshold Media Corp. v. Relativity Media, LLC, 166 F.Supp.3d 1011 (C.D. Cal. 2013))

The fair use analysis is flexible, and a court may consider additional factors on a case-by-case basis. (Threshold Media Corp. v. Relativity Media, LLC, 166 F.Supp.3d 1011 (C.D. Cal. 2013))

The first fair use factor's central purpose is to determine whether and to what extent the challenged work is transformative. A work is transformative when it adds something new, with a further purpose or different character, altering the first with a new expression, meaning, or message. (Threshold Media Corp. v. Relativity Media, LLC, 166 F.Supp.3d 1011 (C.D. Cal. 2013))

A commercial use tends to weigh against a finding of fair use.  (Threshold Media Corp. v. Relativity Media, LLC, 166 F.Supp.3d 1011 (C.D. Cal. 2013))

However, the more transformative the new work, the less will be the significance of other factors, like commercialism, that may weigh against a finding of fair use. (Threshold Media Corp. v. Relativity Media, LLC, 166 F.Supp.3d 1011 (C.D. Cal. 2013))

In Threshold Media Corp. v. Relativity Media, LLC, 166 F.Supp.3d 1011 (C.D. Cal. 2013), the United States District Court for the Central District of California held that the defendants' use of the plaintiff's copyrighted song was a fair use. The song was played a total of four times while the subjects of the film debated whether someone lied to them about making the song. Even though the defendants' use was commercial, their use was highly transformative as it added new expressive content and used the song's original expression for an entirely different purpose. The Court noted that filmmakers recording real-life events almost invariably copy publicly known, expressive works. Furthermore, the defendants used no more of the song than necessary to document the critical moment when the film's subject discovered that his love interest was lying to him. 

In, Lenz v. Universal Music Corp., 815 F.3d 1145 (9th Cir. 2015) may be instructive. In this case, the plaintiff uploaded a 29–second home video of her two young children in the family kitchen dancing to the song Let's Go Crazy by Prince to YouTube. Universal Music Corp., the defendant in this action, issued a takedown notification for copyright infringement. Eventually, the plaintiff got her video reinstated by YouTube and sued the defendant under the Digital Millennium Copyright Act (DMCA) for misrepresenting in the takedown notification that her video constituted an infringing use of Prince's song. The United States Court of Appeals for the Ninth Circuit held that under the DMCA, a copyright holder must consider the existence of fair use before sending a takedown notification. However, the copyright holder need only form a subjective good faith belief that a use is not authorized before sending a takedown notification. The Court found that a jury must determine whether the defendant's actions were sufficient to form a subjective good faith belief about the video's fair use or lack thereof.

Law

In Threshold Media Corp. v. Relativity Media, LLC, 166 F.Supp.3d 1011 (C.D. Cal. 2013) ("Threshold Media"), the defendants were responsible for directing, producing, financing, marketing, and distributing the film, Catfish. Throughout the film, a copyrighted song is played a total of four times while the subjects of the film debated whether someone lied to them about making the song. The film was marketed and distributed without the plaintiff's permission to use the copyrighted song (at 1016-1019): 

Defendants collectively are responsible for directing, producing, financing, marketing, and distributing the film, Catfish. (Defs.' Statement of Uncontroverted Facts (“SUF”) at 15. [Doc. # 48–2].) Marketed as a “reality thriller” (see Joost Decl., Ex. A (“DVD”)) and filmed in a documentary style, Catfish follows the story of Yaniv Schulman, a 24–year–old photographer who lives in New York City, as he develops an online friendship with Abby, an eight-year-old girl in Ishpeming, Michigan, her mother Angela, and several of their family and friends, including—and especially—Abby's 19–year–old half-sister, Megan. The story is filmed by Yaniv's brother, Ariel, and their friend Henry Joost.

2. The Four Allegedly Infringing Uses
3. The First Use

In a pivotal scene—containing the copyrighted material at issue—Yaniv, Ariel, and Henry are in Vail, Colorado to make a dance film. The three of them are in their hotel room. Yaniv—who is instant messaging with Megan—announces that “Megan is taking requests, and she'll record a song right now.” (Id. at 19:05–19:08.) Yaniv asks Megan to record “Tennessee Stud.” (Id. at 19:17–19:24.) She emails Yaniv an mp3 file containing an acoustic recording of the song, which Yaniv plays while he, Ariel, and Henry discuss how impressed they are with her talent. (Id. at 19:25–20:19.)

Yaniv explains to Ariel that on Angela's Facebook page she has posted digital copies of a number of songs purportedly recorded by her and Megan. (Id. at 20:20–20:29.) Yaniv clicks on a song entitled “Downhill,” and the Acoustic Recording is heard playing from his computer for approximately 19 seconds—from the beginning of the song until partway through the third line of the introductory verse (the “first use”).3 (Id. at 20:30–20:48.) While the music is playing in the background, Ariel and Henry tell Yaniv to let Megan know how much they love her songs, and Yaniv is shown typing this into an instant message. (Id. at 20:35–20:47.)

1. The Second Use

Ariel begins singing along with the music before it cuts out, continuing for a few seconds afterward, for a total of approximately 16 seconds (the “second use”). (Id. at 20:47–21:02.)

1. The Third Use

Ariel is shown on his laptop entering a Google search of the phrase “ ‘its [sic] all downhill from here' song.” (Id. at 20:56–21:08.) The film immediately cuts to a shot of an audio player playing a track entitled “All Downhill From Here / BY Amy Kuney [featuring] Tim Myers / ON

[166 F.Supp.3d 1018]

One Tree Hill.” The Studio Recording is heard playing from Ariel's computer.

Yaniv says, “Huh. Sort of sounds like it. A little different though.” (Id. at 21:08–21:17.) After approximately eight seconds, Yaniv and Ariel are shown discussing the track:

Yaniv: It's really similar though.  Ariel: It's not as good. Angela's is better.  Yaniv: Yes.

(Id. at 21:17–21:36.) At this point, the music ends. The entire clip of the Studio Recording lasts approximately 28 seconds—from the beginning of the song through the end of the introductory verse (the “third use”).

Yaniv and Ariel continue their conversation:

Ariel: All right. Listen, you can't hold it against her. She didn't say, “Hey, I wrote this song.”  Yaniv: It doesn't matter, it's just still—yeah.  Ariel: Yeah. And still, her voice is ten times better than this girl. And she's clearly an artist because that came from a deep—from deep expression and feeling.  Yaniv: And she found a song, kind of obscure.  Ariel: She covered a song, yeah. People make careers out of that.  Yaniv: Yeah.

(Id. at 21:37–21:58.)

1. The Fourth Use

The film then cuts to a shot of Ariel's computer playing a track entitled “Amy Kuney ‘All Downhill From Here' (Original) from One Tree Hill.” The Acoustic Recording is heard playing from the computer.

Yaniv: You're just playing this off Facebook.  Ariel: No, I'm not, I'm playing this off of ... look. [He points to the track listing.4] Amy Kuney.

The camera turns to focus on Yaniv and Ariel, who are listening intently to the audio track:

Yaniv: This is it.  Henry: I heard, I mean ... I have food in my mouth.  Yaniv: I mean, is this not the exact same recording?  Ariel: I'm not sure. Sounds a little different.  Henry: This is definitely it.  Yaniv: Definitely it.

(Id. at 21:58–22:38.) The music ends at that point. The 41–second clip starts just before the fourth line of the introductory verse and ends after the fourth line of the chorus (the “fourth use”).

Yaniv, now realizing that he has been deceived, becomes agitated:

Yaniv: They posted it online.  Ariel: Uh huh.  Yaniv: She posted somebody else's music.  Ariel: Did she post it—  Yaniv: Now that doesn't mean she doesn't just put up a song that she likes—fine. But it's called—the artists—“Mom and Megan,” and I complimented her and she said thanks for listening to me cough the dust off my vocal cords.... She responded to a number of compliments that I gave her about the song and how much I liked it and it's not even her singing. It's just a recording of somebody else's.

[166 F.Supp.3d 1019]

Ariel: Are we sure about that?  Yaniv: Yes.

(Id. at 22:39–23:18.)

Yaniv then replays the track of “Tennessee Stud” that Megan sent him and claimed to have recorded herself. He expresses doubt that it's actually Megan performing and thinks it may be “that other girl,” i.e., Amy Kuney. (Id. at 23:19–23:55.) Ariel finds and plays a YouTube clip of Suzanna Choffel performing “Tennessee Stud” on Valentine's Day 2008, which Yaniv immediately recognizes is identical to “Megan's” version. (Id. at 23:56–24:33.)

Now convinced that Megan and her family “are complete psychopaths” (id. at 24:45–24:48), Yaniv tells Ariel and Henry that he wants nothing more to do with them (id. at 25:10–25:22). Ariel and Henry convince him to travel to Michigan to confront Megan and Angela and uncover the truth. (Id. at 32:30–32:57.)

The remainder of the film chronicles this journey and its fallout. In Michigan, Yaniv learns that Megan does not exist. She and most of Abby's other friends and family were concocted and impersonated by Angela.

3. Marketing and Distribution of  Catfish

Defendants marketed and distributed Catfish without Plaintiff's permission to use Amy Kuney's musical works.

The United States District Court for the Central District of California explained that fair use is an affirmative defense to a claim of copyright infringement. 17 U.S.C. § 107 guides courts in determining whether a particular use of a copyrighted work is fair in two ways. First, section 107 lists several nonexclusive examples of fair use including reproduction for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research. Section 107 also sets forth four factors that courts should consider in determining whether a particular use is a fair use, namely, the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes; the nature of the copyrighted work; the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and the effect of the use upon the potential market for or value of the copyrighted work. The fair use analysis is flexible, and a court may consider additional factors on a case-by-case basis. These factors are weighed together in light of the copyright law's purpose to promote the progress of science and art by protecting artistic and scientific works while encouraging the development and evolution of new works (at 1021): 

The current Copyright Act merely codified the existing doctrine as it had developed over time. See H.R.Rep. No. 94–1476, at 66, reprinted in 1976 U.S.C.C.A.N. 5659, 5680 (1976) (“Section 107 is intended to restate the present judicial doctrine of fair use, not to change, narrow, or enlarge it in any way.”). The statute does not directly define “fair use,” which is at heart an “equitable rule of reason.” Dr. Seuss Enters., 109 F.3d at 1399 (quoting Sony Corp. of Am. v. Universal City Studios, Inc., 464 U.S. 417, 448, 104 S.Ct. 774, 78 L.Ed.2d 574 (1984)). Instead, the Act guides courts determining whether a particular use is fair in two ways. First, it lists several nonexclusive examples of fair use: “reproduction ... for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research.” 17 U.S.C. § 107. The Act also provides a structure for the analysis by setting forth four factors that courts should consider:

(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.

The fair use analysis is flexible, and a court may consider additional factors on a case-by-case basis. Leadsinger, Inc. v. BMG Music Publ'g, 512 F.3d 522, 529 (9th Cir.2008) (citing Campbell v. Acuff–Rose Music, Inc., 510 U.S. 569, 577, 114 S.Ct. 1164, 127 L.Ed.2d 500 (1994) ). These factors are not considered in isolation but instead are weighed together “in light of the copyright law's purpose ‘to promote the progress of science and art by protecting artistic and scientific works while encouraging the development and evolution of new works.' ” Id. (quoting Mattel, 353 F.3d at 799 ). Because fair use is an affirmative defense, the defendant bears the burden of proof. Monge, 688 F.3d at 1170.

17 U.S.C. § 107 (2022) sets out: 

• 107. Limitations on exclusive rights: Fair use

Notwithstanding the provisions of sections 106 and 106A, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include-

(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.

The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors.

In Threshold Media, supra, the United States District Court for the Central District of California explained that the first fair use factor's central purpose is to determine whether and to what extent the challenged work is transformative. A work is transformative when it adds something new, with a further purpose or different character, altering the first with a new expression, meaning, or message. The more transformative the new work, the less will be the significance of other factors, like commercialism, that may weigh against a finding of fair use (at 1021-1022): 

The first fair use factor requires consideration of the purpose and

[166 F.Supp.3d 1022]

character of the allegedly infringing use. This inquiry's “central purpose” is to determine whether and to what extent the challenged work is “transformative.” Perfect 10, Inc. v. Amazon.com, Inc. , 487 F.3d 701, 720 (9th Cir.2007) (quoting Campbell, 510 U.S. at 579, 114 S.Ct. 1164 ). A work is “transformative” when it “adds something new, with a further purpose or different character, altering the first with new expression, meaning, or message.” Campbell, 510 U.S. at 579, 114 S.Ct. 1164. If, on the other hand, the work merely “supersede[s] the use of the original,” then “the use is likely not a fair use.” Perfect 10 , 487 F.3d at 720 (quoting Harper & Row Publishers, Inc. v. Nation Enters. , 471 U.S. 539, 550–51, 105 S.Ct. 2218, 85 L.Ed.2d 588 (1985) ) (quotation marks omitted). Because transformative works “lie at the heart of the fair use doctrine's guarantee of breathing space within the confines of copyright, ... the more transformative the new work, the less will be the significance of other factors, like commercialism, that may weigh against a finding of fair use.” Campbell, 510 U.S. at 579, 114 S.Ct. 1164 (internal citation omitted).

The Court found that the defendants' use of the copyrighted song was highly transformative. The defendants' use added new expressive content and used the song's original expression for an entirely different purpose. The defendants engaged in critical commentary and analysis of the song in their use. Additionally, the purpose of the song's original expression was to entertain the listener. The purpose of including the song in Catfish was not to entertain or even to evoke a similar storyline. Rather, the purpose was to show that the love interest was lying to one of the film's subjects and was not who they presented themself to be (at 1022-1023): 

1. Transformative Use

Defendants' use of Plaintiff's song is highly transformative. It both adds new expressive content and uses Amy Kuney's original expression for an entirely different purpose.

1. New Expressive Content

When “All Downhill from Here” is played in Catfish, it comprises only part of the scene. In addition, the scene includes video footage of Yaniv, Ariel, and Henry, their room, and Ariel's laptop screen and keyboard. It also includes original dialogue and other sounds. As Yaniv plays the track of the Acoustic Recording from Angela's Facebook page, Ariel indicates his critical approval of the song by commenting “[t]his one's sick.”5 (DVD at 20:29–20:31.) When Ariel plays the Studio Recording after finding it on the Internet, Yaniv and Ariel comment on its similarity to the Studio Recording, but Ariel opines that the Acoustic Recording—which he believes was made by Angela and Megan—“is better.” (DVD at 21:32–21:37.) When Ariel finds and plays a copy of the Acoustic Recording attributed to Amy Kuney, he and Yaniv listen critically and discuss whether it is the same recording that Angela posted on her Facebook page. Most of their dialogue occurs while the music is playing.

This critical commentary and analysis falls squarely within the category of new expressive content that transforms the copyrighted expression into something different. When a defendant uses the plaintiff's copyrighted material for the purpose of “criticism and review,” the defendant may copy “substantial passages ... because the review supplements, but does not replace, the function of the work being reviewed.” 4 Melville B. Nimmer & David Nimmer, Nimmer on Copyright § 13.05[B][6] (rev. ed.2010). “Criticism and review” are construed broadly and include comment on the copyrighted work to correct “unfair, inaccurate, or derogatory information.”6

[166 F.Supp.3d 1023]

H.R.Rep. No. 94–1476, at 73, reprinted in 1976 U.S.C.C.A.N. 5659, 5687 (1976).

That Yaniv's and Ariel's opinions were expressed using words such as “sick,” “better,” and “worse” rather than more erudite language does not diminish their value or entitlement to protection. Cf. Campbell, 510 U.S. at 582, 114 S.Ct. 1164 (“The threshold question when fair use is raised in defense of parody is whether a parodic character may reasonably be perceived. Whether, going beyond that, parody is in good taste or bad does not and should not matter to fair use.” (footnote omitted)). Nor is it relevant that their commentary was presented as part of a work of entertainment. See William F. Patry, Patry on Fair Use § 3:8 (2012) (“[M]uch comment and criticism are made in an entertainment context.” (citing Wade Williams Distribution, Inc. v. ABC, No. 00 Civ. 5002(LMM), 2005 WL 774275, at *9, 2005 U.S. Dist. LEXIS 5730 (S.D.N.Y. Apr. 5, 2005) ; Hofheinz v. Discovery Commc'ns, Inc., No. 00 CIV. 3802(HB), 2001 WL 1111970, at *4, 2001 U.S. Dist. LEXIS 14752 (S.D.N.Y. Sept. 20, 2001) )).

1. Different Purpose

Defendants' use of Plaintiff's work in Catfish also serves a completely different purpose than the original. This consideration is important and on more than one occasion has led the Ninth Circuit to sanction as fair the wholesale copying of an entire work. See, e.g., Perfect 10, 487 F.3d at 721–22 (“[E]ven making an exact copy of a work may be transformative so long as the copy serves a different function than the original work.” (citing Kelly v. Arriba Soft Corp., 336 F.3d 811, 818–19 (9th Cir.2003) )).

The purpose of “All Downhill from Here” is to entertain the listener (Opp'n at 17) through Amy Kuney's music and lyrics, which describe a person who has withdrawn from the world after a failed relationship. The purpose of including Kuney's song in Catfish was not to entertain using Kuney's music and lyrics or even to evoke a similar story line. Rather, the purpose was to show that Angela was lying to Yaniv—to show that Angela and, by extension, “Megan” were not the people who Angela presented them to be. Defendants used “All Downhill from Here” to document this pivotal moment. The song was heard on the audio file that Megan sent Yaniv and claimed to have made with Angela. A slightly different version was found on the Internet, sung by someone with a similar voice named Amy Kuney. Then another version by Kuney was found on the Internet that sounded exactly like the one Megan had sent. It was only by critically comparing the song that Megan and Angela claimed to have made with the known Kuney recordings that Yaniv determined that Megan had falsely represented the song as her own. At the same time, the filmmakers were inviting the audience to make the same comparison to reach its own conclusion. This critical analysis is entirely different than the song's original entertainment purpose. Cf. A.V. ex rel. Vanderhye v. iParadigms, LLC, 562 F.3d 630, 638–40 (4th Cir.2009) (finding transformative the defendant's copying and storing of student papers for the purpose of comparing them against future papers to uncover plagiarism).

The Court explained that a commercial use tends to weigh against a finding of fair use. However, in this case, the defendants' highly transformative use of the copyrighted song minimized the significance of the fact that the use was commercial in nature. Therefore, the Court found, on balance, the first fair use factor strongly favored the defendants (at 1026): 

2. Commercial Use

Another consideration in evaluating the purpose and character of the use is that Catfish was a commercial rather than non-profit endeavor. See 17 U.S.C. § 107(1); Campbell, 510 U.S. at 584, 114 S.Ct. 1164. While this fact in isolation tends to weigh against a finding of fair use, Defendants' highly transformative use of Kuney's song minimizes its significance. See Campbell, 510 U.S. at 579, 584–85, 114 S.Ct. 1164; see also SOFA Entm't, 709 F.3d at 1279 (finding the fact that the defendant's work was a commercial production to be “of little significance” in the first fair use factor because the defendant's use of the plaintiff's copyrighted work was transformative). On balance, the Court finds that the first fair use factor strongly favors Defendants.

The Court found that the second factor did not greatly assist the Court in its determination of whether the defendants' use was fair. The Court explained that the copyrighted song easily fit within the core of the copyright's protective purposes; however, the defendants' film also fit within this protected core for reasons that had nothing to do with their use of the song. Furthermore, filmmakers recording real-life events almost invariably copy publicly known, expressive works. The Court found that the third factor weighed in favor of the defendants. The defendants used no more of the song than necessary to document the critical moment when the film's subject discovered that his love interest was lying to him. The Court also found that the fourth factor weighed in favor of the defendants. The Court rejected the plaintiff's argument that the defendants' use of the song impaired the market for synchronization licenses of the song. Balancing the four fair use factors, the Court found that the defendants' use was fair (at 1026-1030): 

1. Nature of the Copyrighted Work

The second statutory factor, the nature of the copyrighted work, “calls for recognition that some works are closer to the core of intended copyright protection than others, with the consequence that fair use is more difficult to establish when the former works are copied.” Id. at 586, 114 S.Ct. 1164. Kuney's “original's creative expression for public dissemination” easily fits “within the core of the copyright's protective purposes.” Id. Nonetheless, Catfish also lies within this protected core for reasons that have nothing to do with Defendants' use of Kuney's song. Moreover, filmmakers recording real-life events “almost invariably copy publicly known, expressive works.” Id.; cf., e.g., Italian Book Corp. v. Am. Broad. Cos., Inc., 458 F.Supp. 65 (S.D.N.Y.1978) (finding fair use where news footage of parade incidentally recorded performance of the plaintiff's song). Therefore, this factor does not greatly assist the Court “in separating the fair use sheep from the infringing goats.” Campbell, 510 U.S. at 586, 114 S.Ct. 1164.

1. Amount and Substantiality of the Portion Used Relative to the Copyrighted Work as a Whole

The third statutory factor “asks whether ‘the amount and substantiality of the portion used in relation to the copyrighted work as a whole' ... are reasonable in relation to the purpose of the copying.” Id. at 586, 114 S.Ct. 1164. It requires an examination of both quantitative and qualitative factors. Monge, 688 F.3d at 1178.

Plaintiff first argues that “the sheer amount of the song used in the three-minute scene is substantial” because Defendants use clips of approximately 22% of the Acoustic Recording and 12% of the Studio Recording. (Opp'n at 20–21.) The third statutory factor does not lend itself to such a mechanical analysis. “The inquiry under this factor is a flexible one, rather than a simple determination of the percentage of the copyrighted work used.” Monge, 688 F.3d at 1179.

The filmmakers used no more of Kuney's song than necessary to document the critical moment when Yaniv discovered that Angela was lying to him. The first use of the song, when Yaniv plays a clip of the recording that was supposedly made by Angela and Megan but later revealed to be the Acoustic Recording, lasts for only 19 out of 189 seconds—from the beginning through a portion of the first verse. It is enough to give the audience a sense of the song but no more. The second use of the song, when Ariel sings along for approximately 16 seconds to recall the lyrics while typing them into a search engine, is similarly no longer than necessary to give the audience a sense of what he is doing.

[166 F.Supp.3d 1027]

The third and fourth uses, lasting respectively 28 out of 209 seconds (the Studio Recording) and 41 out of 189 seconds (the Acoustic Recording), are also no longer than necessary to serve the purpose of revealing Angela's lie. The third use merely repeats a similar portion of the Studio Recording as was heard in the Acoustic Recording but attributed to Angela and Megan. It is long enough for Yaniv and the filmmakers to comment on and for the audience to grasp the two versions' similarity. The fourth use, when it becomes clear that the Acoustic Recording attributed to Kuney is in fact identical to the Acoustic Recording attributed to Angela and Megan, is somewhat longer because Yaniv, Ariel, and Henry are commenting on the track more actively as it continues to play in the background.

Plaintiff maintains that “Defendants reproduced the heart of the Song (i.e., the chorus) and played it repeatedly.” (Opp'n at 21.) Only the fourth and possibly the second use (Ariel's singing is largely unintelligible) contain the chorus, and by the time in the fourth use when the chorus is heard, the scene's focus is on the realization that Angela has lied rather than on presenting the music for its own inherent entertainment value.

Plaintiff also asserts that Defendants could have used some alternative plot device to reveal Angela's deception instead of playing Kuney's song repeatedly (Opp'n at 17)—though it does not explain how. It is true that the filmmakers could have, for example, reenacted the scene later using different music or replaced the scene with an interview of Yaniv narrating the key events. But such alternatives artificially impinge upon the creative process. They would force the filmmakers to sacrifice the film's verisimilitude, its drama, or both. The descriptive term “reality thriller” would no longer apply.

Although one might quibble whether the filmmakers could have cut a second or two from their uses of Kuney's song in order to further reduce its overall exposure, the overall amount used was reasonable in light of their purpose. As such, the third statutory factor favors Defendants.

1. Effect on the Potential Market for the Copyrighted Work

The fourth fair use factor “requires courts to consider not only the extent of market harm caused by the particular actions of the alleged infringer, but also ‘whether unrestricted and widespread conduct of the sort engaged in by the defendant ... would result in a substantially adverse impact on the potential market' for the original.” Campbell, 510 U.S. at 590, 114 S.Ct. 1164 (quoting 3 Nimmer § 13.05[A][4] (1993)). Plaintiff does not argue that Catfish affected the market for recordings of Kuney's song.8 (See Barker Depo. at 145:22–146:5 (conceding that it did not).) No one would purchase the right to view Catfish as a substitute for purchasing Amy Kuney's song. To begin with, the longest single clip of the song lasts only 41 seconds, amounting to approximately 38% of the song. Websites that sell digital copies of music online routinely allow potential buyers to play a sample —typically lasting 30 seconds or more—before deciding whether to purchase the song. It is inconceivable that hearing a similarly timed clip of Kuney's song in Catfish would dissuade a listener from purchasing it if the listener were otherwise predisposed to do so. Furthermore, the audio quality of the song in the film is low because it is played through speakers on Ariel's laptop and captured on film as ambient sound rather than recorded directly into the film's audio track—or at least the film is engineered to sound that way.

Instead, Plaintiff maintains that Catfish impaired the market for synchronization licenses to “All Downhill from Here.”10 (Opp'n at 22–24.) Yet, there is no obvious reason why that would be the case. Plaintiff begins with the assumption that the onetime use of her song for synchronization in a single television show—One Tree Hill —shows a market demand for its future synchronization in television and other media. This is doubtful, but even if, arguendo, it were true, Plaintiff's conclusion—that Catfish 's theatrical release caused a subsequent falloff in synchronization demand—does not follow.

When a new song is released, the demand to synchronize it to television shows and movies inevitably tapers off over time as the song falls out of people's favor or memories. Of course, the rate at which any given song is forgotten will vary—some songs, such as Imagine, endure longer than others.11 Written in 2007 and first published on May 18, 2008, the Studio Recording was licensed the next day for use in a One Tree Hill episode. (Opp'n, Exs. 24, 25; see also Barker Depo. at 160:23–25.) More than two years passed before Defendants released Catfish, in which time there were no further licenses for the synchronization of the Studio Recording in any medium. (See Barker Depo. at 155:18–159:7.) The Acoustic Recording, also published in 2008 (Opp'n, Ex. 24), has never been licensed. (See Barker Depo. at 158:23–159:7.) These facts are inconsistent with Plaintiff's assertion that a synchronization market exists.

To the extent some exogenous factor suppressed the demand to synchronize Kuney's song, it is far more likely that the song's synchronization use in One Tree Hill rather than its non-synchronization use in Catfish is to blame. The creators of other television shows and movies, wanting their works to appear fresh, may not want to synchronize a song that has already been heard on television. Although Plaintiff points out that four of Kuney's other songs have been licensed for synchronization (see Opp'n at 24, Ex. 26), there is no evidence that any of Kuney's songs has been licensed more than once. Plaintiff simply fails to articulate how the overwhelmingly positive reception that greeted “All Downhill from Here” in Catfish harmed its synchronization market in a way that its use in One Tree Hill did not.12 The fourth fair use factor thus favors Defendants.

1. Balancing the Factors

Drawing all reasonable inferences in favor of Plaintiff, a reasonable factfinder could conclude that parts of the film were dishonest or deceptive. Most notably, there is evidence that Yaniv had a serious romantic relationship with a woman in New York while he was cultivating his online relationship with “Megan” and did not disclose this fact to Megan. There is evidence that the filmmakers deliberately omitted this fact from the film to make the story seem less staged. But this evidence does not undermine the uncontroverted evidence that Angela 's actions (including those of her alter egos) were her own—they were not scripted, prompted, or directed by anyone else.

Angela decided to post the Studio Recording on Facebook, and it was upon hearing the Studio Recording that Yaniv first realized that Megan and Angela were lying to him. The filmmakers did not have a choice which song they could use in their story to document that critical moment—for better or for worse, they were stuck with “All Downhill from Here” if they wanted to remain faithful to the documentary style of their film.

The facts here thus differ from the synchronization context, where the filmmakers or studio can bargain with various artists for the use of their songs in a film, television show, or commercial. If one artist presents a holdout problem, demanding unreasonably high licensing fees, there are alternatives. Although the alternative songs may be less aesthetically pleasing, there is a sufficiently large market that the filmmaker or studio can decide how to balance the economic and artistic tradeoffs.

“The fair use doctrine must strike a balance between the dual risks created by the copyright system: on the one hand, that depriving authors of their monopoly will reduce their incentive to create, and, on the other, that granting authors a complete monopoly will reduce the creative ability of others.” Sony, 464 U.S. at 479, 104 S.Ct. 774 (Blackmun, J., dissenting); see also SOFA Entm't, 709 F.3d at 1277–78 (explaining that the Copyright Act “grant[s] authors a ‘special reward' in the form of a limited monopoly over their works” in order “to stimulate artistic creativity for the general public good” but that the doctrine of fair use prevents “an overzealous monopolist [from] us[ing] his copyright to stamp out the very creativity that the Act seeks to ignite” (citations and internal quotation marks omitted)). Here, there was not a large market to which Defendants could turn. Their only choice was to release the film or not. To hold that their use of Amy Kuney's music was not fair would be to grant Plaintiff not just a copyright but—in effect—a veto over a new, transformative work.13 That would not serve the purposes of the Copyright Clause.

CONCLUSION

In light of the foregoing, Defendants' motion for summary judgment and/or partial summary judgment is GRANTED . Judgment shall be entered in favor of Defendants on Plaintiff's copyright infringement claims arising from the commercial version of Catfish.

Legal Authorities

Threshold Media Corp. v. Relativity Media, LLC, 166 F.Supp.3d 1011 (C.D. Cal. 2013)

17 U.S.C. § 107 (2022)

Lenz v. Universal Music Corp., 815 F.3d 1145 (9th Cir. 2015)

Brown v. Netflix, Inc., No. 20-2007 (2nd Cir. 2021)

Italian Book Corp. v. Am. Broad. Companies, 458 F. Supp. 65 (S.D. N.Y. 1978)