Case 1:16-cv-07382-LAK Document 16 Filed 11/21/16 Page 1 of 26

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
------------------------------------KALI KANONGATAA,
Plaintiff,
-againstAMERICAN BROADCASTING COMPANIES,
INC. AND YAHOO! INC.,
Defendants.
-------------------------------------

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ECF Case
Case No. 1:16-cv-07382 (LAK)

MEMORANDUM OF LAW
IN SUPPORT OF DEFENDANTS’ MOTION TO DISMISS

Nathan E. Siegel
Dana R. Green
LEVINE SULLIVAN KOCH & SCHULZ, LLP
1899 L Street NW, Suite 200
Washington, DC 20036
Tel: (202) 508-1100
Fax: (202) 861-9888
nsiegel@lskslaw.com
Counsel for Defendants American Broadcasting
Companies, Inc. and Yahoo! Inc.

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TABLE OF CONTENTS
TABLE OF AUTHORITIES .......................................................................................................... ii
PRELIMINARY STATEMENT .....................................................................................................1
SUMMARY OF FACTS AND ALLEGATIONS ...........................................................................2
I.

THE PARTIES.....................................................................................................................2

II.

PLAINTIFF’S ALLEGATIONS .........................................................................................3

ARGUMENT ...................................................................................................................................5
I.

DEFENDANTS’ FAIR USE ARGUMENTS ARE PROPERLY
CONSIDERED AT THIS TIME .........................................................................................5

II.

ABC’S USE OF SHORT CLIPS FROM THE VIDEO IS A FAIR USE ...........................7
A.

The Purpose and Character of ABC’s Use Favors a Finding of Fair
Use ...........................................................................................................................7
1.

ABC use the clips for comment and news reporting ...................................8

2.

ABC’s use of clips from the Video was transformative ..............................9

3.

ABC’s status as a for-profit entity is not relevant......................................12

B.

The Nature of the Copyrighted Work Weighs in Favor of Fair Use .....................13

C.

The Amount and Substantiality of the Portion Use Weighs in Favor of
Fair Use ..................................................................................................................15

D.

The Effect of the Use Upon the Potential Market Weighs in Favor of
Fair Use ..................................................................................................................17

E.

The Balance of the Factors, Taken Together With the Public Interest,
Demonstrates that Fair Use Was Made ..................................................................18

CONCLUSION ..............................................................................................................................19

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TABLE OF AUTHORITIES
Page(s)
Cases
Arica Institute, Inc. v. Palmer,
970 F.2d 1067 (2d Cir. 1992).....................................................................................................8
Arrow Productions, LTD. v. Weinstein Co. LLC,
44 F. Supp. 3d 359, 370 (S.D.N.Y. 2014) ...............................................................................13
Authors Guild v. Google, Inc.,
804 F.3d 202 (2d Cir. 2015)...............................................................................................13, 14
Bill Graham Archives v. Dorling Kindersely Ltd.,
448 F.3d 605 (2d Cir. 2006)...........................................................................................9, 17, 18
Blanch v. Koons,
467 F.3d 244 (2d Cir. 2006)............................................................................................. passim
Brass v. American Film Technologies, Inc.,
987 F.2d 142 (2d Cir. 1993).......................................................................................................3
Brownmark Films, LLC v. Comedy Partners,
682 F.3d 687 (7th Cir. 2012) .....................................................................................................6
Burnett v. Twentieth Century Fox Film Corp.,
491 F. Supp. 2d 962 (C.D. Cal. 2007) .......................................................................................6
Campbell v. Acuff-Rose Music, Inc.,
510 U.S. 569, 114 S.Ct. 1164 (1994) ............................................................................... passim
Cariou v. Prince,
714 F.3d 694 (2d Cir. 2013)............................................................................................. passim
Castle Rock Entertainment, Inc. v. Carol Publishing Group, Inc.,
150 F.3d 132 (2d Cir. 1998)............................................................................................. passim
Davis v. Gap, Inc.,
246 F.3d 152 (2d Cir. 2001).................................................................................................7, 17
Eldred v. Ashcroft,
537 U.S. 186, 123 S.Ct. 769 (2003) ...........................................................................................2
Fitzgerald v. CBS Broadcasting, Inc.,
491 F. Supp. 2d 177 (D. Mass. 2007) ......................................................................................15

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Fox News Network, LLC v. TVEyes, Inc.,
43 F. Supp. 3d 379, 393-94 (S.D.N.Y. 2014) ..........................................................................13
Harper & Row Publishers, Inc. v. Nation Enterprises,
471 U.S. 539, 105 S.Ct. 2218 (1985) .................................................................................14, 15
Hofheinz v. A & E Television Networks, Inc.,
146 F. Supp. 2d 442 (S.D.N.Y.2001).................................................................................12, 16
Hofheinz v. AMC Productions, Inc.,
147 F. Supp. 2d 127 (E.D.N.Y. 2001) ...............................................................................11, 16
Hofheinz v. Discovery Communications, Inc.,
No. 00 Civ. 3802(HB), 2001 WL 1111970 (S.D.N.Y. Sept. 20, 2001) .............................11, 16
Kane v. Comedy Partners,
No. 00 Civ. 158(GBD), 2003 WL 22383387 (S.D.N.Y. Oct. 16, 2003) ...........................11, 13
Katz v. Chevaldina,
No. 12 Civ. 22211, 2014 WL 2815496 (S.D. Fla. June 17, 2014) ..........................................14
Keeling v. Hars,
809 F.3d 43 (2d Cir. 2015).........................................................................................................9
Kelly v. Arriba Soft Corp.,
336 F.3d 811 (9th Cir. 2003) ...................................................................................................15
Leadsinger, Inc. v. BMG Music Publishing,
512 F.3d 522 (9th Cir. 2008) .....................................................................................................6
Leibovitz v. Paramount Pictures Corp.,
137 F.3d 109 (2d Cir. 1998)...............................................................................................16, 18
Levingston v. Earle,
No. CV-12-08165-PCT-JAT, 2014 WL 1246369 (D. Ariz. Mar. 26, 2014) .............................6
Los Angeles News Service v. KCAL-TV Channel 9,
108 F.3d 1119 (9th Cir. 1997) ...................................................................................................1
Michaels v. Internet Entertainment. Group, Inc.,
No. CV 98-0583(CWx), 1998 WL 882848 (C.D. Cal. Sept. 11, 1998)...................................12
Monster Communications, Inc. v. Turner Broadcasting System, Inc.,
935 F. Supp. 490 (S.D.N.Y. 1996) ....................................................................................14, 16
North Jersey Media Group Inc. v. Pirro,
74 F. Supp. 3d 605, 619-20 (S.D.N.Y. 2015) ..........................................................................14

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Nunez v. Caribbean International News Corp.,
235 F.3d 18 (1st Cir. 2000) ..................................................................................................9, 11
NXIVM Corp. v. Ross Institute,
364 F.3d 471 (2d Cir. 2004).......................................................................................7, 8, 12, 17
Righthaven LLC v. Realty One Group, Inc.,
No. 2:10-cv-1036-LRH-PAL, 2010 WL 4115413 (D. Nev. Oct. 19, 2010) ..............................6
Ringgold v. Black Entertainment Television, Inc.,
126 F.3d 70 (2d Cir. 1997).....................................................................................................1, 8
Savage v. Council on American–Islamic Relations, Inc.,
No. C 07-6076 SI, 2008 WL 2951281 (N.D. Cal. July 25, 2008) .............................................6
Scott v. WorldStarHipHop, Inc.,
No. 10 Civ. 9538 (PKC)(RLE), 2011 WL 5082410 (S.D.N.Y. Oct. 25, 2011).........................6
SOFA Entertainment, Inc. v. Dodger Productions, Inc.,
709 F.3d 1273 (9th Cir. 2013) ...........................................................................................12, 16
Swatch Group Management Services Ltd. v. Bloomberg L.P.,
756 F.3d 73 (2d Cir. 2014).............................................................................................2, 12, 18
TCA Television Corp. v. McCollum,
839 F.3d 168 (2d Cir. 2016).............................................................................................5, 8, 14
Video Pipeline, Inc. v. Buena Vista Home Entertainment, Inc.,
342 F.3d 191 (3d Cir. 2003).....................................................................................................16
Video-Cinema Films, Inc. v. Cable News Network, Inc.,
2003 WL 1701904 (S.D.N.Y. Mar. 31, 2003) .........................................................................15
Video-Cinema Films, Inc. v. Cable News Network, Inc.,
No. 98 Civ. 7128(BSJ), 2001 WL 1518264 (S.D.N.Y. Nov. 28, 2001) ............................11, 18
Wade Williams Distribution, Inc. v. American Broadcasting Company, Inc.,
No. 00 Civ. 5002(LMM), 2005 WL 774275 (S.D.N.Y. Apr. 5, 2005) ....................................11
Wright v. Warner Books, Inc.,
953 F.2d 731 (2d Cir. 1991).................................................................................................8, 15
Statutes
17 U.S.C. § 106 ................................................................................................................................5
17 U.S.C. § 501 ................................................................................................................................5
17 U.S.C. § 107 ................................................................................................................2, 8, 12, 15
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Other Authorities
FED. R. CIV. P. 12(b)(6) .........................................................................................................1, 3, 18
2 Howard B. Abrams, The Law of Copyright, § 15:52 (2006) ......................................................13
4 Melville B. Nimmer & David Nimmer, Nimmer on Copyright § 13.05[A][1][a],
at 13–162 (Matthew Bender, rev. ed., 2016) .............................................................................8
Nimmer on Copyright § 13.05[A][2][a] .........................................................................................14
Pierre N. Leval, Toward a Fair Use Standard, 103 Harv. L. Rev. 1105, 1111
(1990) .......................................................................................................................................10

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Defendants respectfully submit this Memorandum of Law in support of their Motion to
Dismiss the Complaint, pursuant to Fed. R. Civ. P. 12(b)(6), for failure to state a claim.
PRELIMINARY STATEMENT
This case presents a textbook example of a fair use. Defendant ABC reported and
commented on a socially significant and newsworthy event: the phenomenon of a couple using
the Facebook Lives program to publicly broadcast their son’s birth on the Internet (the “Video”).
As part of that reporting, ABC used a tiny fraction of the footage—22 seconds from the original
45 minute Video—to explain what the story was about, to enable viewers to understand and form
an opinion about the couple’s actions, and to enable ABC journalists to comment on the event.
The story also appeared on a Yahoo! News website that hosts content from ABC News.
In the Complaint, Kanongataa claims that ABC’s reporting infringed his copyright in the
Video. There is no legal basis for this claim; courts repeatedly and consistently have found such
use to be “fair use.” Where pictures or videotapes themselves are the focus of a major news
story, news reporters may make brief use of selected footage to explain to the public what the
story is about. See, e.g., Ringgold v. Black Entm’t Television, Inc., 126 F.3d 70, 79 (2d Cir.
1997) (“the case for a fair use defense would be extremely strong” were a “TV news program” to
use visual works to comment upon their significance); Los Angeles News Serv. v. KCAL-TV
Channel 9, 108 F.3d 1119, 1121 (9th Cir. 1997) (observing “there is a forceful argument” for fair
use when a news organization reports on and shows portions of a videotape that itself is
newsworthy).
If the Copyright Act did not permit ABC to engage in this type of use, it would
substantially inhibit important First Amendment activities by enabling copyright holders to
exercise control over the public’s ability to understand news events. The Copyright Act

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specifically avoids this outcome. The Copyright Act “contains built-in First Amendment
accommodations,” among them the fair use doctrine, which “allows the public to use not only
facts and ideas contained in a copyrighted work, but also expression itself in certain
circumstances.” Eldred v. Ashcroft, 537 U.S. 186, 219, 123 S.Ct. 769, 788-89 (2003) (emphasis
added). The Copyright Act expressly provides that “the fair use of a copyrighted work . . . for
purposes such as criticism, comment, [or] news reporting, . . . is not an infringement of
copyright.” 17 U.S.C. § 107 (2016) (emphasis added). The fair use doctrine is especially
sensitive to attempts to use Copyright to restrict news reporting activity. See Swatch Grp. Mgmt.
Servs. Ltd. v. Bloomberg L.P., 756 F.3d 73, 84 (2d Cir. 2014) (noting in a fair use analysis that
“deliver[ing] newsworthy . . . information . . . lies at the core of the First Amendment [and]
would be crippled if the news media and similar organizations were limited to authorized sources
of information.”).
ABC’s use of brief, edited footage from the Video for the purposes of news reporting and
commentary falls squarely within the Copyright Act’s protections for fair use. As shown below,
all of the factors relevant to the fair use analysis weigh heavily in favor of fair use here.
Plaintiff’s Complaint should be dismissed with prejudice and without leave to amend.
SUMMARY OF FACTS AND ALLEGATIONS
I.

THE PARTIES
According to the Complaint, Kanongataa is the owner of the Polynesian Cultural

Exchange, a non-profit organization that helps those of Pacific Islander descent utilize their
talents. Compl. ¶ 5, Sept. 22, 2016, Dkt. 1.
Defendant ABC is a broadcast television network. Among other things, ABC produces
the national daily morning television news program Good Morning America. Compl. ¶ 6. ABC

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also makes available Good Morning America episodes online, at http://abcnews.go.com/. Id.
Defendant Yahoo! Inc. is the owner of a website, www.yahoo.com. Id. ¶ 7.
II.

PLAINTIFF’S ALLEGATIONS
According to the allegations in the Complaint, on May 16, 2016 Kanongataa made a 45

minute live broadcast on the Internet of his partner giving birth to their son. Compl. ¶ 8;
https://www.facebook.com/PolynesianNonprofit/videos/1073990016008022/ (last visited
November 18, 2016) (hereinafter “Plaintiff’s Facebook Account”); Declaration of Nathan Siegel,
dated November 21, 2016 (“Siegel Decl.”) Ex. A. 1 Kanongataa broadcast the Video via
“Facebook Live.” Id. Kanongataa claims this broadcast was “Facebook’s First Live Birth.”
Compl. ¶ 1. The Video remains publicly accessible on Kanongataa’s Facebook account.
Plaintiff’s Facebook Account; Sigel Decl. ¶ 3 and Ex. B.
The Video is an unedited, amateur video that appears to have been filmed with a
smartphone. See Siegel Decl. Ex. A. It last for approximately 45 minutes and depicts, in real
time, labor and delivery from Plaintiff’s point of view and includes: personal and medical
conversations between Plaintiff, his partner, and medical personnel; close-ups of medical
monitors and equipment in the hospital room; plaintiff’s partner, partially naked and laboring to
deliver; medical personnel assisting the delivery and administering treatment; plaintiff
encouraging his partner while she delivers the baby; plaintiff’s newly-born son crying and being
treated by medical personnel; plaintiff praying and welcoming his son; and, finally, the mother
In considering a motion to dismiss for failure to state a claim pursuant to Rule 12(b)(6), a court may
consider “documents attached to the complaint as an exhibit or incorporated in it by reference, . . . matters
of which judicial notice may be taken, or . . . documents either in plaintiffs’ possession or of which
plaintiffs had knowledge and relied on in bringing suit.” Brass v. Am. Film Techs., Inc., 987 F.2d 142,
150 (2d Cir. 1993). Kanongataa incorporates by reference and relies on in bringing his claim the Video
published on his Facebook page May 16, 2016. See Compl. ¶ 8. For the Court’s convenience, the
materials referenced in the Complaint are attached to the Affirmation of Nathan Siegel submitted with
this motion.

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and child wrapped in blankets recovering from childbirth while Plaintiff talks to them and
admires the baby. Id.
The following day, May 17, 2016, the ABC daily news program, Good Morning
America, reported on the fact that a couple had used the new Facebook Live utility to publicly
broadcast their child’s birth (the “GMA broadcast”). The GMA broadcast also was published on
the ABC website, Compl. ¶¶ 11, 12 & Ex. A (video available at:
http://abcnews.go.com/GMA/video/man-facebook-live-stream-wife-giving-birth-39178353);
Siegel Decl. Ex. C, and on a Yahoo! News website that hosts content from Good Morning
America, Compl. ¶ 14 & Ex. B (video also available at: https://gma.yahoo.com/video/man-usesfacebook-live-stream-200930741.html); Siegel Decl. Ex. D. 2
During the GMA broadcast, host Amy Robach introduced clips from the Video with the
following commentary:
ROBACH: Well we have a far more positive livestream experience
to share with you. This one actually showing the miracle of life.
A woman in California gave birth live on Facebook, the delivery
captured in real time, shared by her husband, who happens to be a
comedian. The video mostly focused on mom’s face. Their
healthy baby boy made his entrance 37 minutes into the livestream.
Quickly racked up thousands of views, with the new dad telling
viewers “‘thanks for enjoying the gift of life with me.’”
See Compl. ¶¶ 12, 14; Siegel Decl. Exs. C & D.
While Ms. Robach spoke, ABC showed a series of brief clips from the 45 minute Video,
each lasting only a few seconds and totaling approximately 22 seconds of footage. Id. Unlike
the Video itself, some of the clips as edited by ABC do not contain any audio because Ms.
Robach talks over the clips. Id. The clips show, in short succession, plaintiff’s partner laboring
Since there is only one news story at issue here, the same ABC News report that appeared on the two
Defendants’ websites, this memorandum refers to it as ABC’s report throughout.

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in a hospital bed with medical personal standing around her; his newborn son being dried with a
towel; and his partner, wrapped in a blanket, embracing her son. Id. At the top of the screen,
ABC credited plaintiff with the video footage. Id. At the bottom of the screen a large banner
appeared, showing a Facebook symbol, GMA and ABC symbols, and the headline “NEW THIS
MORNING, COUPLE LIVESTREAMS BABY’S BIRTH, BROADCASTS DELIVERY LIVE
ON FACEBOOK.” Id.
The GMA broadcast then cut back to hosts Michael Strahan, George Stephanopoulos, and
Amy Robach, who commented on the Video and the couple’s decision. Id.
ROBACH: That is a very sharing mother. I don’t know that I
would have felt the same way.
STRAHAN: Yeah. Well, you know, that’s something that’s
caught on tape. I would never have considered that if I were ever
to have a baby. I’ll tell you that.
Id.
The Complaint alleges that ABC’s public display of portions of the Video during the
GMA broadcast and on the GMA website infringed Plaintiff’s copyright in the Video, in
violation of 17 U.S.C. §§ 106, 501. Compl. ¶ 1.
ARGUMENT
I.

DEFENDANTS’ FAIR USE ARGUMENTS ARE PROPERLY CONSIDERED AT
THIS TIME
Courts in this and other circuits have affirmed that copyright infringement claims may be

dismissed on fair use grounds on a motion to dismiss, where a comparison of the two works at
issue is sufficient to decide the question of fair use. See, e.g., TCA Television Corp. v.
McCollum, 839 F.3d 168, 178 (2d Cir. 2016) (“this court has acknowledged the possibility of fair
use being so clearly established by a complaint as to support dismissal of a copyright
infringement claim”); Cariou v. Prince, 714 F.3d 694, 707 (2d Cir. 2013) (citing with approval
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Brownmark Films, LLC v. Comedy Partners, 682 F.3d 687 (7th Cir. 2012) (affirming dismissal
of a copyright claim on fair use grounds)); Scott v. WorldStarHipHop, Inc., No. 10 Civ. 9538
(PKC)(RLE), 2011 WL 5082410, at *8 (S.D.N.Y. Oct. 25, 2011) (Fair use may be raised at the
motion to dismiss stage if it “‘appears on the face of the complaint.’” (quoting Pani v. Empire
Blue Cross Blue Shield, 152 F.3d 67, 74 (2d Cir. 1998))), vacated on other grounds by 2011 WL
13079877 (S.D.N.Y. Dec. 12, 2011); Leadsinger, Inc. v. BMG Music Publ’g, 512 F.3d 522, 530
(9th Cir. 2008) (affirming an “assertion of fair use may be considered on a motion to dismiss,
which requires the court to consider all allegations to be true, in a manner substantially similar to
consideration of the same issue on a motion for summary judgment, when no material facts are
in dispute”); Savage v. Council on American–Islamic Relations, Inc., No. C 07-6076 SI, 2008
WL 2951281, at *4–9 (N.D. Cal. July 25, 2008) (granting Rule 12(c) motion for judgment on the
pleadings based on fair use defense); Burnett v. Twentieth Century Fox Film Corp., 491 F. Supp.
2d 962, 972 (C.D. Cal. 2007) (granting defendant’s motion to dismiss on fair use grounds);
Levingston v. Earle, No. CV-12-08165-PCT-JAT, 2014 WL 1246369, at *2 (D. Ariz. Mar. 26,
2014) (dismissing sua sponte infringement claim on fair use grounds); Righthaven LLC v. Realty
One Grp., Inc., No. 2:10-cv-1036-LRH-PAL, 2010 WL 4115413, at *2 (D. Nev. Oct. 19, 2010)
(same).
This is precisely the type of case that is ripe for dismissal now. The Complaint, together
with the evidence attached thereto as exhibits or incorporated by reference, is all that is needed to
decide the question of fair use. They show that the briefs clips from the Video: were used for
news reporting and commentary; were used transformatively; were factual in nature; were
previously published on Facebook; represented a negligible fraction of the original Video; were
not a substitute for the original, which in any event may be viewed without charge; and were

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filmed by a comedian to show people his son’s birth. Consequently, this Court should simply
apply the statutory factors to the pleadings, and find fair use as a matter of law.
II.

ABC’S USE OF SHORT CLIPS FROM THE VIDEO IS A FAIR USE
The Copyright Act specifies four non-exclusive factors that must be considered to

determine whether a particular use is fair: (1) the purpose and character of the use; (ii) the nature
of the copyrighted work; (iii) the amount and substantiality of the portion used; and (iv) the
effect of the use on the market for the original. This is “an open-ended and context-sensitive
inquiry.” Cariou, 714 F.3d at 705 (citations omitted). The “ultimate test of fair use, therefore, 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.” Castle Rock Entm’t, Inc. v.
Carol Publ’g Grp., Inc., 150 F.3d 132, 141 (2d Cir. 1998) (brackets, quotation, and citations
omitted). As shown below, all four factors weigh in Defendants’ favor.
A.

The Purpose and Character of ABC’s Use Favors a Finding of Fair Use

The first statutory factor, the purpose and character of the use, is “‘[t]he heart of the fair
use inquiry.’” Blanch v. Koons, 467 F.3d 244, 251 (2d Cir. 2006) (quoting Davis v. Gap, Inc.,
246 F.3d 152, 174 (2d Cir. 2001)). Courts have developed three guidelines for applying this
factor. They are: (1) whether the material was used for any of the favored purposes specifically
mentioned in the statute, and (2) whether the defendant used the material for a meaningfully
different or “transformative” purpose than the original. If so, then (3) whether the defendant is a
for-profit or non-profit entity deserves little consideration. Campbell v. Acuff-Rose Music, Inc.,
510 U.S. 569, 578-79, 114 S.Ct. 1164, 1171 (1994); NXIVM Corp. v. Ross Inst., 364 F.3d 471,
478 (2d Cir. 2004), cert. denied, 543 U.S. 1000, 125 S. Ct. 607 (2004). These guidelines
overwhelmingly favor a finding of fair use here, as a matter of law.

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1.

ABC used the clips for comment and news reporting

ABC used brief clips from the Video as part of reporting news about the socially
significant phenomenon of a couple using Facebook Live to live broadcast their child’s birth, and
to comment on that event. As plaintiff himself alleges, this was thought to be the first time
Facebook Live had been used to broadcast a birth. The GMA broadcast explained to viewers
what had happened, showed them brief clips from the Video to illustrate what the livestreamed
birth looked like, and then commented on the couple’s unusual decision.
“Comment” and “news reporting” are favored uses under the Copyright Act, specifically
identified as likely fair use. See 17 U.S.C. § 107; TCA Television Corp., 839 F.3d at 179 (“[T]he
uses identified by Congress in the preamble to § 107” are “‘most appropriate’ for a purpose of
character finding indicative of fair use.” (quoting 4 Melville B. Nimmer & David Nimmer,
Nimmer on Copyright § 13.05[A][1][a], at 13–162 (Matthew Bender, rev. ed., 2016))). The
Second Circuit has repeatedly held that where a defendant’s use is one of the uses identified in
§ 107, there will be a “strong presumption that factor one favors the defendant.” Wright v.
Warner Books, Inc., 953 F.2d 731, 736 (2d Cir. 1991). See also NXIVM Corp., 364 F.3d at 477
(same); Arica Inst., Inc. v. Palmer, 970 F.2d 1067, 1077 (2d Cir. 1992) (same). That
presumption clearly applies to ABC’s use of a few clips from the Video.
Even more importantly, this particular news broadcast reflected the archetypical example
of a fair use because the streaming of the Video itself was what was newsworthy, not the
underlying event depicted in the video. As the Second Circuit has explained, “the case for a fair
use defense would be extremely strong” were a “TV news program” to use visual works to
comment upon their significance.” Ringgold, 126 F.3d at 79. That is exactly what happened
here. The mother, child and medical professionals depicted in the video are never identified in
the story, because the fact of that particular baby’s birth was not the point of the news story.
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Rather, what was significant was the livestreaming of a birth on Facebook, and the brief clips
from the Video were used to show the public what that looked like.
Courts in other jurisdictions likewise hold that when a photograph or video itself
becomes newsworthy, the news media may fairly depict it to report that story even if it is
necessary to use the entire work, which was certainly not the case here. For example, in Nunez v.
Caribbean Int’l News Corp., 235 F.3d 18 (1st Cir. 2000), a newspaper reported about the fact
that a beauty pageant winner had appeared in nude modeling photos, and showed some of the
photos. The First Circuit held that it was a fair use to show the photos, because the existence of
the pictures themselves was the newsworthy item. Id. at 22 (“[T]he pictures were the story. It
would have been much more difficult to explain the controversy without reproducing the
photographs.” (quotation omitted)). The same is true here.
2.

ABC’s use of clips from the Video was transformative

The most important factor in the fair use analysis is whether the secondary use was
transformative. See Bill Graham Archives v. Dorling Kindersely Ltd., 448 F.3d 605, 608 (2d Cir.
2006) (“Most important to the court’s analysis of the first factor is ‘transformative’ nature of the
work.”). Transformative works “lie at the heart of the fair use doctrine’s guarantee of breathing
space within the confines of copyright . . . . and 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. at 1171. See also Keeling v. Hars, 809 F.3d 43,
53 (2d Cir. 2015) (“As a legal matter, the four factors do not each carry equal weight . . . indeed,
some may not be relevant at all. . . . [T]he first factor—‘the purpose and character of the use,’ 17
U.S.C. § 107—lies at the ‘heart of the inquiry’ . . . while the other three factors are much less
important.”), cert. denied, 136 S. Ct. 2519 (2016).

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A work is ‘transformative’ when the new work does not “merely supersede[ ] the objects
of the original creation” but “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. at 1171. Where a different use “provide[s] a social benefit,” it is more likely to be
transformative. Id. “If the secondary use adds value to the original—if [the original] is used as
raw material, transformed in the creation of new information, new aesthetics, new insights and
understandings—this is the very type of activity that the fair use doctrine intends to protect for
the enrichment of society.” Castle Rock, 150 F.3d at 142 (quotation and citation omitted). “For
a use to be fair, it ‘must be productive and must employ the quoted matter in a different manner
or for a different purpose from the original.’” Cariou, 714 F.3d at 706 (quoting Pierre N. Leval,
Toward a Fair Use Standard, 103 Harv. L. Rev. 1105, 1111 (1990)).
A comparison of the Video and the GMA broadcast makes clear the highly
transformative nature of ABC’s use. The Video is 45 minutes of amateur footage. It depicts, in
real time and intimate detail, the later stages of labor and delivery from Plaintiff’s point of view.
It is unedited and without any introduction, narrative commentary, or other context. And its
purpose is to enable family, friends, or anyone else to watch the entire last phase of the birth of
this particular baby.
In contrast, the GMA broadcast has a different purpose and an entirely different
character. It is a short news broadcast whose purpose was to report to the public, and comment
on, the unusual phenomenon of a couple using Facebook Live to publicly broadcast their child’s
birth. The GMA broadcast enhanced the Video by adding a title, graphics, and narration to
provide context to the brief clips used, by explaining why the public had access to the Video and
what its significance was. ABC edited the Video to use only 22 seconds from the 45 minute

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film, and then further edited the Video to remove some of the audio while the news anchor
explained the underlying video clips. The news presenters then added commentary, expressing
through humor their opinions about the couple’s controversial decision to broadcast what
typically is a private occasion.
The purpose and effect of the GMA broadcast was very different from the original Video.
The purpose and effect of the Video was to enable viewers to experience a particular child’s birth
as if they were in the room, not to report a news story about livestreaming births or to comment
on whether this is a sound practice. Just like the newspaper in Nunez, these Defendants’ effected
“the transformation of the work[] into news.” Nunez, 235 F.3d at 23. The GMA broadcast is
therefore precisely the kind of use for commentary and news reporting that courts repeatedly
have deemed “transformative.” See, e.g., Wade Williams Distribution, Inc. v. Am. Broad. Co.,
Inc., No. 00 Civ. 5002(LMM), 2005 WL 774275, at *9 (S.D.N.Y. Apr. 5, 2005) (use by Good
Morning America of brief clips from alien movies as part of reporting and commentary on the
history and merits of alien films was “clearly transformative”); Kane v. Comedy Partners, No. 00
Civ. 158(GBD), 2003 WL 22383387, at *4 (S.D.N.Y. Oct. 16, 2003) (use of brief clip from a
public access television show, accompanied by comment and ridicule on its quality, was
transformative), aff’d 98 F. App’x. 73 (2d Cir. 2004); Video-Cinema Films, Inc. v. Cable News
Network, Inc., No. 98 Civ. 7128(BSJ), 2001 WL 1518264, at *6 (S.D.N.Y. Nov. 28, 2001) (use
of brief film clips to report on the death of the actor Robert Mitchum was transformative; the
original film was intended to entertain, the news report “aimed to inform the viewing public of
Mitchum’s death and educate them regarding his impact on the arts.”); Hofheinz v. AMC Prods.,
Inc., 147 F. Supp. 2d 127, 137 (E.D.N.Y. 2001) (use of brief film clips as part of documentary
film about the development of the monster movie genre was transformative); Hofheinz v.

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Discovery Commc’ns, Inc., No. 00 Civ. 3802(HB), 2001 WL 1111970, at *4 (S.D.N.Y. Sept. 20,
2001) (use of clips from alien film in documentary about alien films was transformative);
Hofheinz v. A & E Television Networks, Inc., 146 F. Supp. 2d 442, 446-47 (S.D.N.Y.2001) (use
of film clips in a biographical film to “enable[e] the viewer to understand the actor’s modest
beginnings in the film business” was transformative); SOFA Entm’t, Inc. v. Dodger Prods., Inc.,
709 F.3d 1273, 1278-79 (9th Cir. 2013) (musical’s use of a seven-second clip from Ed Sullivan
Show as a “biographical anchor” in telling the story of a band was transformative); Michaels v.
Internet Entm’t. Grp., Inc., No. CV 98-0583(CWx), 1998 WL 882848 (C.D. Cal. Sept. 11, 1998)
(tabloid new program’s use of eight short clips, 2 to 5 seconds in length, from celebrity sex tape
“to illustrate its news story about the Tape’s imminent release” was transformative). Because
ABC’s use clearly was transformative, this element—the ‘heart of the inquiry’ into fair use—
weighs heavily in Defendants’ favor.
3.

ABC’s status as a for-profit entity is not relevant

Finally, the first fair use factor considers whether the allegedly infringing work has a
commercial or nonprofit educational purpose. Cariou, 714 F.3d at 708. However, the Supreme
Court has made clear that where material is used for a transformative purpose favored by § 107,
the defendant’s status as a commercial entity does not create any presumption of unfairness.
Campbell, 510 U.S. at 584, 114 S.Ct. at 1174; see also NXIVM Corp., 364 F.3d at 477 (“The
Supreme Court in Campbell rejected the notion that the commercial nature of the use could by
itself be a dispositive consideration.”). This is because “nearly all of the illustrative uses listed in
the preamble paragraph of § 107, including news reporting . . . are generally conducted for
profit.” Campbell, 510 U.S. at 584, 114 S.Ct. at 1174 (citation and quotation omitted); see also
Cariou, 714 F.3d at 708 (same); Swatch, 756 F.3d at 83 (recognizing that “almost all” media
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enterprises are commercial and therefore assigning “relatively little weight” to this factor);
Castle Rock, 150 F.3d at 142 (“[We] do not give much weight to the fact that the secondary use
was for commercial gain.”); Kane, 2003 WL 22383387, at *3 (“[T]he Supreme Court has
discounted the force of commerciality in applying a fair use analysis.”).
Where, as here, the allegedly infringing work clearly is transformative, the “commercial”
factor is of little significance. “[T]he 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. at 1171. Courts in this circuit repeatedly have deemed this
factor largely irrelevant to the fair use analysis where a work was transformative. See, e.g.,
Authors Guild v. Google, Inc., 804 F.3d 202, 219 (2d Cir. 2015) (commercial motivation deemed
of little significance where there was a “highly convincing transformative purpose, together with
the absence of significant substitutive competition.”); Blanch, 467 F.3d at 244 (where the new
work was substantially transformative, “[w]e therefore discount the secondary commercial
nature of the use.” (quotation and citation omitted)); Fox News Network, LLC v. TVEyes, Inc., 43
F. Supp. 3d 379, 393-94 (S.D.N.Y. 2014) (fair use analysis not affected by profits where the
work was transformative); Arrow Prods., LTD. v. Weinstein Co. LLC, 44 F. Supp. 3d 359, 370
(S.D.N.Y. 2014) (“[T]he court does not place very much significance on this part of the first fairuse factor given the transformative nature of the work.”).
B.

The Nature of the Copyrighted Work Weighs in Favor of Fair Use

The second factor in the fair use analysis is the nature of the copyrighted work. Courts
consider “‘(1) whether the work is expressive or creative, . . . with a greater leeway being
allowed a claim of fair use where the work is factual or informational, and (2) whether the work
is published or unpublished, with the scope for fair use involving unpublished works being
considerably narrower.’” Blanch, 467 F.3d at 256 (quoting 2 Howard B. Abrams, The Law of
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Copyright, § 15:52 (2006)). Here, both elements weigh heavily in favor of fair use.
As to the first element, whether the work is expressive or creative, the underlying Video
is a factual, unedited recording of a child’s birth. The fact that the Video is a non-fiction work
weighs heavily in favor of Defendants’ fair use. “[T]he more informational or functional the
plaintiff’s work, the broader should be the scope of the fair use defense.” Nimmer on Copyright
§ 13.05[A][2][a]. See also TCA Television Corp., 839 F.3d at 184 (“[T]he secondary user of
noncreative information can more readily claim fair use based on the law’s recognition of ‘a
greater need to disseminate factual works than works of fiction or fantasy.’” (quoting Harper &
Row Publishers, Inc. v. Nation Enters., 471 U.S. 539, 563, 105 S.Ct. 2218, 2231 (1985)));
Authors Guild, 804 F.3d at 220 & n.21 (explaining that factual works “often present well
justified fair uses” because “there is often occasion to test the accuracy of, to rely on, or to repeat
their factual propositions,” which “may reasonably require quotation”); Castle Rock, 150 F.3d at
143-44; Monster Commc’ns, Inc. v. Turner Broad. Sys., Inc., 935 F. Supp. 490, 494 (S.D.N.Y.
1996) (“There is a public interest in receiving information concerning the world in which we
live. The more newsworthy the person or event depicted, the greater the concern that too narrow
a view of the fair use defense will deprive the public of significant information.”).
Courts in this and other circuits have thus found that video or photographic depictions of
real events weigh in favor of fair use—even when professional photographers made the images
or recordings, which is certainly not the case here. See, e.g., North Jersey Media Grp. Inc. v.
Pirro, 74 F. Supp. 3d 605, 619-20 (S.D.N.Y. 2015) (photograph of the attacks on the World
Trade Center were “a non-fictional rendering” “created for news gathering or other non-artistic
purposes” and therefore this factor weighed “heavily in favor of fair use.”); Katz v. Chevaldina,
No. 12 Civ. 22211, 2014 WL 2815496, at *1 (S.D. Fla. June 17, 2014) (where the work at issue

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was a candid picture of a man at basketball practice and there was “no evidence that the
photographer influenced, at all, the [subjects] activity, pose, expression or clothing” and the
photograph conveyed no creative ideas, this factor weighed in favor of fair use); Fitzgerald v.
CBS Broad., Inc., 491 F. Supp. 2d 177, 188 (D. Mass. 2007) (freelance photographer’s images of
a well-known mobster, as he was being walked out of a police station, was a factual work and
this factor weighed in favor of fair use). As in those cases, the factual, documentary nature of
the Video weighs in favor of fair use.
As to the second element, whether the work is unpublished, it is undisputed that plaintiff
published the Video to the general public prior to ABC’s use—indeed, it was the very fact that
Kanongataa had published the Video on the Internet that made it newsworthy. See Compl. ¶¶ 8,
11-14. Use of a published work is “more likely to qualify as fair use because the first appearance
of the artist’s expression has already occurred.” Kelly v. Arriba Soft Corp., 336 F.3d 811, 818
(9th Cir. 2003). See also Harper & Row Publishers, Inc., 471 U.S. at 540, 105 S.Ct. at 2220;
Blanch, 467 F.3d at 256. This element also weighs heavily in favor of Defendants’ fair use.
C.

The Amount and Substantiality of the Portion Used Weighs in Favor of Fair
Use

The third factor, “the amount and substantiality of the portion used in relation to the
copyrighted work as a whole,” 17 U.S.C. § 107, also weighs heavily in favor of fair use. In
making this determination, the court considers whether “the portion used formed a significant
percentage of the copyrighted work.” Warner Books, 953 F.2d at 738. Here, ABC used 22
seconds of film clips from a 45 minute recording, approximately 0.8% of the Video. Courts in
this Circuit have consistently found such a miniscule use of a longer video to be fair. See, e.g.,
Video-Cinema Films, Inc. v. Cable News Network, Inc., 2003 WL 1701904, at *7 & n.19
(S.D.N.Y. Mar. 31, 2003) (use of clips of 6 to 22 seconds, less than 1% of 108 minute film, was
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fair use; “The Second Circuit has consistently found fair use in cases where only a small portion
of the original work was used.” (collecting cases)); A & E Television Networks, Inc., 146 F.
Supp. 2d at 447-48 (use of 20 second clip from 70 minute film was fair use); Discovery
Comm’ns., 2001 WL 1111970, at *6 (use of clips of 48 and 32 seconds was fair use); AMC
Prods., Inc., 147 F. Supp. 2d at 139 (use of clips of between fifteen and forty-four seconds was
fair use; “Such de minimus amounts of a full-length feature film and such de minimus showings
from the originals favor a finding of fair use.”); Monster Commc’ns., Inc., 935 F. Supp. at 49596 (use of 1% of original film was fair use). Courts in other jurisdictions have reached the same
conclusion. See also SOFA Entm’t, 709 F.3d 1273 at 1280 (use of seven-second clip from
television show was fair use); Video Pipeline, Inc. v. Buena Vista Home Entm’t, Inc., 342 F.3d
191, 201 (3d Cir. 2003) (use of two minute montage of film’s title and opening credit, one or two
brief scenes, and closing title, was fair use), cert. denied, 540 U.S. 1178, 124 S.Ct. 1410 (2004).
ABC’s use of less than 1% of the Video weighs heavily in favor of fair use.
The Court also should consider not just the quantity used, but “‘whether the quantity and
value of the materials used are reasonable in relation to the purpose of the copying.’” Cariou,
714 F.3d at 710 (quoting Blanch, 467 F.3d at 257). The secondary use “‘must be [permitted] to
‘conjure up’ at least enough of the original’ to fulfill its transformative purpose.” Id. (quoting
Campbell, 510 U.S. at 588, 114 S.Ct. at 1176); Leibovitz v. Paramount Pictures Corp., 137 F.3d
109, 114 (2d Cir. 1998). The use of less than 1% of the Video was reasonable and directly
fulfilled the GMA broadcast’s transformative purpose. As shown above, the purpose of the
GMA broadcast was to inform viewers that a couple had broadcast their son’s birth live, via
Facebook, an unprecedented and controversial event, and to engage in commentary about the
value or intrusiveness of such a broadcast. That task required some display of actual footage

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from the broadcast. The very limited quantity and substance of the material used was reasonable
and proportional to that transformative purpose. That too weighs heavily in favor of fair use.
See, e.g., NXIM Corp., 364 F.3d at 481 (where the use was “reasonably necessary” “to support
[defendant’s] critical commentary”, this factor favored fair use).
D.

The Effect of the Use Upon the Potential Market Weighs in Favor of Fair Use

Finally, the fourth factor also weighs in favor of fair use because the 22 seconds of silent
footage shown by ABC clearly is no substitute for the original, 45 minute Video. As the Second
Circuit stated in Cariou, “[w]e have made clear that ‘our concern is not whether the secondary
use suppresses or even destroys the market for the original work or its potential derivatives, but
whether the secondary use usurps the market of the original work.’” 714 F.3d at 708 (quoting
Blanch, 467 F.3d at 258). A secondary use “usurps” the market “where the infringer’s target
audience and the nature of the infringing content is the same as the original.” Id. at 709. In other
words, “the focus . . . is on whether defendants are offering a market substitute for the original.”
NXIVM Corp., 364 F.3d at 481. When conducting this analysis, “[t]he more transformative the
secondary use, the less likelihood that the secondary use substitutes for the original.” Cariou,
714 F.3d at 709; Bill Graham Archives, 448 F.3d at 614-5 (secondary use does not affect the
market for the original where it is “transformatively different from their original expressive
purpose.”); Davis, 246 F.3d at 175; Castle Rock, 150 F.3d at 145 n.11.
As shown above, ABC’s use was highly transformative and cannot substitute for the
original. The GMA broadcast showed 22 seconds of partially silent footage, overlaid with the
host’s commentary about the Video and enhanced with graphics. It was a news program that
provided a very brief insight into the existence and nature of the Video, which was quite
different than Plaintiff’s original purpose in livestreaming the entire last 45 minutes of his son’s
birth and the couple’s experience in giving birth.
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Moreover, the GMA story can hardly be said to interfere with any “market” for the Video
itself, given that the Plaintiff is a comedian who livestreamed the Video to the general public for
free. He does not allege that he is a photojournalist in the business of taking and licensing video
to news organizations. And even if he was, the Second Circuit has made clear that it would not
make a difference. Where a use is transformative, as a matter of law, “copyright owners may not
preempt exploitation of transformative markets” by claiming that they could have tried to charge
a license fee. Castle Rock, 150 F.3d at 146 n.11; Bill Graham Archives, 448 F.3d at 614.
Rather, where, as here, “Defendants have produced a transformative work that would otherwise
qualify for fair use, and Defendant[s’] work does not interfere with the market for the original,
the fourth factor favors the [D]efendants as a matter of law. Video-Cinema Films, Inc., 2001 WL
1518264, at *8 (citing Leibovitz, 137 F.3d at 116-17). Consequently, this fourth fair use factor
also weighs in Defendants’ favor.
E.

The Balance of the Factors, Taken Together With the Public Interest,
Demonstrates that Fair Use Was Made

In sum, based on the 12(b)(6) record, it is clear that all four statutory factors weigh
heavily in favor of Defendants’ defense of fair use. Moreover, if a news organization cannot
explain to the public why a video is newsworthy by providing a brief example of its content,
copyright holders could exercise a monopoly over the public’s access to newsworthy
information. In fact, it is plain that Plaintiff is simply using the Copyright Act to try to capitalize
on the fact that a Video livestreamed for his own personal purposes unexpectedly became a
newsworthy event, and so he has sued at least a half-dozen news organizations which reported
that story. Balancing these factors and the allegations in the Complaint, it is clear that “the
copyright law’s goal of promoting the Progress of Science and useful Arts would be better
served by allowing [Defendants’] use than by preventing it.” Swatch, 756 F.3d at 92 (quotation
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and citations omitted). The Complaint should be dismissed without leave to amend because no
attempt to replead could overcome Defendants’ fair use defense.
CONCLUSION
For the foregoing reasons, Defendants respectfully request that the Court grant their
Motion and dismiss the Complaint with prejudice.
Dated: November 21, 2016
New York, New York

Respectfully submitted,
LEVINE SULLIVAN KOCH & SCHULZ, LLP
By:

Nathan E. Siegel
Dana R. Green
1899 L Street NW, Suite 200
Washington, DC 20036
Tel: (202) 508-1100
Fax: (202) 861-9888
nsiegel@lskslaw.com
Counsel for Defendants

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CERTIFICATE OF SERVICE
I, Dana R. Green, hereby certify that on November 21, 2016, I caused true and correct copies of
Defendant ABC’s Memorandum of Law in Support of Its Motion to Dismiss to be served by
ECF upon:
Richard Liebowitz
Liebowitz Law Firm, PLLC
11 Sunrise Plaza, Suite 305
Valley Stream, NY 11580
Tel: (516) 233-1660
RL@LiebowitzLawFirm.com
Attorney for Plaintiff

Dana R. Green