Satirical Depiction in YouTube Video Gets Rough Treatment in Court

August 8, 2021 · by · in Copyright, Trademark

Goodman made and posted a YouTube video called the “Crony Awards,” bestowing honors on countries that downplayed the COVID-19 virus. Because the court says Goodman’s company “traffics in wild conspiracy theories,” it’s likely the video actually celebrates countries for COVID denialism rather than criticizing the countries as you or I would have done. The distaste for Goodman’s message might have colored the court’s opinion.

The video depicted its award as the well-known Emmy statuette with a coronavirus replacing the atom in the holder’s hands:

The Television Academies, who own the IP rights to the statuette, targeted the video with a DMCA notice to YouTube, which YouTube honored. Goodman counternoticed. It’s not clear if YouTube honored the counternotice, but the video is unavailable now (perhaps as part of YouTube’s crackdown on COVID misinformation?). The Television Academies sued Goodman for copyright infringement, trademark infringement and dilution, and defamation. Goodman counterclaimed for 512(f) and violation of New York’s anti-SLAPP law. The court rejects Goodman’s motion to dismiss.

Copyright Infringement/Fair Use. The Crony graphic appeared as the video’s thumbnail image and in the video’s first 10 seconds, so it was not a de minimis use.

The Crony graphic also doesn’t qualify for fair use:

  • Nature of Use. It wasn’t transformative because “a simple side-by-side comparison of the Emmy Statuette and the Crony Graphic confirms that the Crony Graphic retains the dominant and essential aesthetic elements of the Emmy Statuette.” It also has the same purpose of functioning as an award. The video doesn’t qualify as a parody because the video never mentioned the Television Academies. (Indeed, I think this is a good example of a satire). The Television Academies adequately alleged commercial use because the video linked to Goodman’s Patreon and SubscribeStar accounts, where Goodman commercializes his works. UGH: the meme that “links-make-editorial-work-commercial” rears its ugly head again.
  • Nature of Work. Goodman conceded that the statuette is “arguably creative.”
  • Amount Taken. Goodman took the whole statuette and just replaced the item in its hands, plus “Defendant has not shown that it was necessary to use the Emmy Statuette.”
  • Market Effect. “Plaintiffs have adequately alleged that they suffered actual and reputational harm through Defendant’s association of the Emmy Statuette with dangerous misinformation about the COVID-19 pandemic.” UGH, no.

It’s pretty jarring to see how this court remixes the increasingly awful Second Circuit jurisprudence on fair use. I think it would have been helpful if the court anchored its fair use finding on the fact that the Crony graphic was a satire, not a parody, because the fair use jurisprudence on satire is quite copyright owner-favorable. But the court never mentions the word “satire” once, which pushes the court to adopt other less-rigorous fair use doctrinal tools.

Trademark Dilution. The Crony graphic doesn’t qualify for the “parody” exclusion to  trademark dilution. In a footnote, the court adds that the graphic doesn’t qualify for trademark fair use because Goodman used the mark to promote his own services, which the court says are the Crony Awards. UGH. This circular logic reminded me a little of one of my least-favorite trademark cases of all time, the SMJ Group, Inc. v. 417 Lafayette Restaurant case.

Trademark Infringement. The court does a brief multi-factor consumer confusion analysis:

  • The trademark is strong
  • “the Emmy Statuette and the Crony Graphic are nearly identical; the Crony Graphic depicts the same winged figure holding a globe-shaped object in the same dimensions, proportions, and colors as the Emmy Statuette. Indeed, Defendant admits to using ‘the entire’ Emmy Statuette in the Crony Graphic.”
  • There is competitive proximity because Goodman hosted an awards show (the Crony Awards video)
  • No evidence Goodman will bridge the gap
  • No evidence of actual confusion, but the “striking similarity” could suggest a false association. Really?
  • “Because Defendant does not dispute that it copied the entire Emmy Statuette to create the Crony Graphic, the Court finds a presumption of bad faith to be appropriate here.” UGH.
  • No evidence re. differences in quality of goods.
  • “Plaintiffs have adequately alleged that a member of the general online public ‘might see the EMMY Statuette Design as used by Defendant and mistakenly believe that there is a link between Plaintiffs and Defendant or find the association offensive, thus tarnishing the mark.'” UGH, this is like a moron-in-a-hurry analysis; and what does tarnishment and offensiveness have to do with consumer confusion?

All told, “Plaintiffs have plausibly alleged a probability of confusion,” so motion to dismiss denied.

In theory, Goodman might fare better at summary judgment when the standards of review are more favorable than a motion to dismiss. However, given the tenor of this court’s opinion, Goodman will almost certainly need a plan B.

NY Anti-SLAPP Counterclaim. The court says the NY law doesn’t apply in federal court because it “imposes a different, and higher, burden on the plaintiff at the pleading stage than the Federal Rules of Civil Procedure.” Goodman may not be a great exemplar of SLAPP victims, but we desperately need a federal anti-SLAPP law.

512(f). When the Television Academies sent the takedown notice to YouTube, there is no evidence they knowingly made a misrepresentation about the infringement. Another 512(f) claim fails.

Case citation: National Academy of TV Arts and Sciences v. Multimedia System Design, 2021 WL 3271829 (S.D.N.Y. July 30, 2021)

Prior Posts on Section 512(f):

* 512(f) Preempts Tortious Interference Claim–Copy Me That v. This Old Gal
* 512(f) Claim Against Robo-Notice Sender Can Proceed–Enttech v. Okularity
* Copyright Plaintiffs Can’t Figure Out What Copyrights They Own, Court Says ¯\_(ツ)_/¯
* A 512(f) Case Leads to a Rare Damages Award (on a Default Judgment)–California Beach v. Du
* 512(f) Claim Survives Motion to Dismiss–Brandyn Love v. Nuclear Blast America
* 512(f) Claim Fails in the 11th Circuit–Johnson v. New Destiny Christian Center
* Court Orders Rightsowner to Withdraw DMCA Takedown Notices Sent to Amazon–Beyond Blond v. Heldman
* Another 512(f) Claim Fails–Ningbo Mizhihe v Doe
* Video Excerpts Qualify as Fair Use (and Another 512(f) Claim Fails)–Hughes v. Benjamin
* How Have Section 512(f) Cases Fared Since 2017? (Spoiler: Not Well)
* Another Section 512(f) Case Fails–ISE v. Longarzo
* Another 512(f) Case Fails–Handshoe v. Perret
* A DMCA Section 512(f) Case Survives Dismissal–ISE v. Longarzo
* DMCA’s Unhelpful 512(f) Preempts Helpful State Law Claims–Stevens v. Vodka and Milk
* Section 512(f) Complaint Survives Motion to Dismiss–Johnson v. New Destiny Church
* ‘Reaction’ Video Protected By Fair Use–Hosseinzadeh v. Klein
* 9th Circuit Sides With Fair Use in Dancing Baby Takedown Case–Lenz v. Universal
* Two 512(f) Rulings Where The Litigants Dispute Copyright Ownership
* It Takes a Default Judgment to Win a 17 USC 512(f) Case–Automattic v. Steiner
* Vague Takedown Notice Targeting Facebook Page Results in Possible Liability–CrossFit v. Alvies
* Another 512(f) Claim Fails–Tuteur v. Crosley-Corcoran
* 17 USC 512(f) Is Dead–Lenz v. Universal Music
* 512(f) Plaintiff Can’t Get Discovery to Back Up His Allegations of Bogus Takedowns–Ouellette v. Viacom
* Updates on Transborder Copyright Enforcement Over “Grandma Got Run Over by a Reindeer”–Shropshire v. Canning
* 17 USC 512(f) Preempts State Law Claims Over Bogus Copyright Takedown Notices–Amaretto v. Ozimals
* 17 USC 512(f) Claim Against “Twilight” Studio Survives Motion to Dismiss–Smith v. Summit Entertainment
* Cease & Desist Letter to iTunes Isn’t Covered by 17 USC 512(f)–Red Rock v. UMG
* Copyright Takedown Notice Isn’t Actionable Unless There’s an Actual Takedown–Amaretto v. Ozimals
* Second Life Ordered to Stop Honoring a Copyright Owner’s Takedown Notices–Amaretto Ranch Breedables v. Ozimals
* Another Copyright Owner Sent a Defective Takedown Notice and Faced 512(f) Liability–Rosen v. HSI
* Furniture Retailer Enjoined from Sending eBay VeRO Notices–Design Furnishings v. Zen Path
* Disclosure of the Substance of Privileged Communications via Email, Blog, and Chat Results in Waiver — Lenz v. Universal
* YouTube Uploader Can’t Sue Sender of Mistaken Takedown Notice–Cabell v. Zimmerman
* Rare Ruling on Damages for Sending Bogus Copyright Takedown Notice–Lenz v. Universal
* 512(f) Claim Dismissed on Jurisdictional Grounds–Project DoD v. Federici
* Biosafe-One v. Hawks Dismissed
* Michael Savage Takedown Letter Might Violate 512(f)–Brave New Media v. Weiner
* Fair Use – It’s the Law (for what it’s worth)–Lenz v. Universal
* Copyright Owner Enjoined from Sending DMCA Takedown Notices–Biosafe-One v. Hawks
* New(ish) Report on 512 Takedown Notices
* Can 512(f) Support an Injunction? Novotny v. Chapman
* Allegedly Wrong VeRO Notice of Claimed Infringement Not Actionable–Dudnikov v. MGA Entertainment