ORDER RE DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT AND/OR PARTIAL SUMMARY JUDGMENT
This matter is before the Court on Defendants’ motion for summary judgment and partial summary judgment. The Court held a hearing on January 13, 2012. Having duly considered the respective positions of the parties, as presented in their briefs and at oral argument, the Court now renders its decision. For the reasons set forth below, Defendants’ motion is GRANTED.
I.
PROCEDURAL HISTORY
On December 3, 2010, Plaintiff Threshold Media Corp. filed the operative complaint against Defendants Relativity Media, LLC, Relativity Rogue, LLC, Universal City Studios Productions, LLLP, Supermarche, Inc., Henry Joost, Ariel Schulman, Hit the Ground Running Enterprises, LLC, Andrew Jar-ecki, and Marc Smerling [Doc. # 1]. In the complaint, Plaintiff raises a single claim for copyright infringement based on five allegedly unauthorized uses of its song “All Downhill from Here” in Defen
II.
COMPLIANCE WITH LOCAL RULE 7-3
As a preliminary matter, Plaintiff asks the Court to strike Defendants’ motion for summary judgment because Defendants failed to comply with Local Rule 7-3. Plaintiff further requests that the Court impose sanctions against Defendants under Local Rule 83-7.
Although a district court’s local rules have “the force of law,” Hollingsworth v. Perry,
Decisions from the Central District of California reflect a flexible approach to the application of Local Rule 7-3. See, e.g., Internet Direct Response, Inc. v. Buckley, No. SACV 09-1335 ABC (MLG),
The purpose of Local Rule 7-3, as the Rule itself makes clear, is for “counsel to discuss thoroughly, preferably in person, the substance of the contemplated motion” so that they may “reach a resolution which eliminates the necessity for a hearing.” C.D. Cal. L.R. 7-3 (emphasis in original).
Plaintiff was on notice that Defendants planned to file a summary judgment motion based on Defendants’ asserted fair use defense. In the parties’ March 7, 2011 joint Rule 26(f) report, Defendants stated their intention “to move for summary judgment on the ground that whether their use of the composition and sound recordings at issue constitutes copyright infringement or fair use is a question of law.” (Jt. Rule 26(f) Report at 5 [Doc. # 27].) Plaintiff articulated its “position that this action involves clear factual disputes regarding 'the nature of the film
Furthermore, in mid-July the parties had several informal discussions regarding Defendants’ planned summary judgment motion based on fair use. On July 13 and July 21, 2011, the parties engaged in telephonic meet-and-confer conferences, at each of which Defendants advised Plaintiff that they intended to move for summary judgment on fair use grounds at the close of discovery. (Sanders Reply Deck ¶¶ 11-12, 15 [Doc. # 69].) At the July 13, 2011 conference, Plaintiff was highly critical of Defendants’ fair use defense. (/¿¶ 13.) After a deposition on July 18, 2011, Plaintiffs counsel Neville Johnson and Defendants’ counsel Jeff Sanders discussed the anticipated motion — including some of the issues that counsel believed were pertinent to the fair use defense — informally over lunch. (MU 14.)
Thus, Defendants satisfied the requirements of Local Rule 7-3 in substance if not in form. Moreover, it is manifest that further discussions on fair use would not have been fruitful. The fact that Defendants used Plaintiffs intellectual property is not in dispute. Thus, fair use is a legal issue — indeed, the central legal issue in this case — on which the parties fundamentally disagree. Either Defendants’ inclusion of Plaintiffs intellectual property in their film was fair use — in which case Plaintiffs claims fail — or it was not fair use and Defendants are liable for copyright infringement.
III.
FACTUAL BACKGROUND
As it must on this motion for summary judgment, the Court sets forth the material facts, some of which are disputed, and views all reasonable inferences to be drawn from them in the light most favorable to Plaintiff, the non-moving party.
A. Amy Kuney’s Two Versions of “All Downhill from Here”
Plaintiff owns the master sound recording “All Downhill from Here” by Amy Kuney, in which she and Tim Myers perform the song as a duet (the “Studio Recording”). (Opp’n, Ex. 24 [Doc. # 59-4].) Plaintiff also owns the master sound recording of the acoustic version of the song that is available on YouTube (the “Acoustic Recording”). (Id.) The Studio Recording is approximately three and a half minutes long (3:29), and the Acoustic Recording is slightly more than three minutes long (3:09). (Opp’n, Ex. 8 [Doc. # 59-2].)
B. Defendants’Film Catñsh
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 Deck, 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.
At the start of the film, Yaniv and Abby have been corresponding through the mail and Facebook for several months. They were first introduced when Abby sent Ya-niv paintings that she created depicting Yaniv’s photography. Abby explains in her initial letter that she created these paintings after encountering Yaniv’s photographs in a newspaper article. (DVD at 2:13-4:23.)
Approximately nine minutes into the 87-minute film, its focus shifts to Yaniv’s relationship with Megan. Yaniv thinks that Megan “has a big crush” on him. (Id. at 9:33-9:34.) Megan writes and records a song for Yaniv, which is played while Ya-niv discusses it. (Id. at 13:06-13:32.) Soon thereafter, Yaniv and Megan are shown using increasingly flirtatious language in their online correspondence. (Id. at 15:18-16:11, 16:52-18:00.) When asked if they’re “full on going out,” Yaniv responds “We’re not, but ... if we met each other and the attraction exists in real life ... it would be like — instantaneous relationship.” (Id. at 16:13-16:28.) Yaniv sends a postcard to Megan in which he writes “I have a really good feeling about ‘us.’ ” (Id. at 17:01.)
2. The Four Allegedly Infringing Uses
a.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.) Ya-niv 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”).
b.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.)
c.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 impaediately cuts to a shot of an audio player playing a track entitled “All Downhill From Here / BY Amy Kuney [featuring] Tim Myers / ON
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.)
d. The Fourth Use
The film then cuts to a shot of Ariel’s computer playing a track entitled “Aniy 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 Face-book.
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.
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,” ie., 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, Ya-niv 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 Plaintiffs permission to use Amy Kuney’s musical works.
IV.
LEGAL STANDARD
Summary judgment should be granted “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). Material facts are those that may affect the outcome of the case. Anderson v. Liberty Lobby, Inc.,
The moving party bears the initial burden of establishing the absence of a genuine issue of material fact. Celotex Corp. v. Catrett,
Fair use is a mixed question of law- and fact. Monge v. Maya Magazines, Inc.,
V.
DISCUSSION
The Copyright Clause vests Congress with the power “[t]o promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.” U.S. Const, art. I, § 8, cl. 8. It recognizes that “creative intellectual activity is vital to the well-being of society,” and serves to encourage creative endeavors by “confer[ring] monopoly-exploitation benefits for a limited duration on authors and artists.” Pierre N. Leval, Toward a Fair Use Standard, 103 Harv. L.Rev. 1105, 1109 (1990); see also Mazer v. Stein,
Though exclusive, these rights are subject to a number of limitations — in particular, fair use. See id. § 107. The fair use defense offers courts a way “to avoid rigid application of the copyright statute when, on occasion, it would stifle the very creativity which that law is designed to foster.” Dr. Seuss Enters., L.P. v. Penguin Books USA Inc.,
Fair use developed in English courts during the eighteenth century as an equitable exception to copyright protection. See Monge,
Every single book, ... sold by the proprietor, becomes the property of the buyer who purchases, with the book, the right of making such use of it as he shall think most convenient, either for his own improvement or amusement, or the benefit or entertainment of mankind.
By these liberties it is obvious, that authors and proprietors may often suffer, and sometimes unjustly: but as these liberties are encouraged and allowed for the same reason with writing itself, for the discovery and propagation of truth, though, like other human goods, they have their alloys and ill consequences; yet, as their advantages abundantly preponderate, they have never yet been abolished or restrained.
Thus every book, when it falls into the hands of the reader, is liable to be examined, confuted, censured, translated, and abridged; any of which may destroy the credit of the author, or hinder the sale of the book.
Over the past two centuries, American courts have applied similar reasoning in adopting fair use principles into copyright analysis. See, e.g., Folsom v. Marsh,
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.,
(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.
Id.
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,
A. Purpose and Character of the Use
The first fair use factor requires consideration of the purpose and
1. Transformative Use
Defendants’ use of Plaintiffs song is highly transformative. It both adds new expressive content and uses Amy Kuney’s original expression for an entirely different purpose.
a. 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.”
This critical commentary and analysis falls squarely within the category of new expressive content that transforms the copyrighted expression into something different. Wfiien a defendant uses the plaintiffs 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.”
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,
b. Different Purpose
Defendants’ use of Plaintiffs 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,
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 Ku-ney’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,
Recently, the Ninth Circuit held that a seven-second clip of The Ed Sullivan Show in a musical theater production was fair use because the defendant “put the clip to its own transformative ends” by using it as a historical reference point. SOFA Entm’t v. Dodger Prods.,
Similarly, in Lennon v. Premise Media Corp.,
Approximately 65 minutes into the 99-minute film, Stein interviews a speaker with a negative view of religion. Id. at 317-18. When questioned about his ideal world, the speaker expresses his hope that greater scientific literacy will eventually diminish religion’s role in society. Stein then intones that the speaker “would like you to think he’s being original but he’s merely lifting a page out of John Lennon’s songbook.” Id. at 318 (internal quotation mark omitted). At that point, “Imagine” begins to play — specifically, the lyrics “Nothing to kill or die for / And no religion too” — while sequences of black-and-white archival footage are displayed along with the lyrics to “Imagine” in subtitles. Id. at 317-18. The district court found that the film incorporated the excerpt of “Imagine” for the purposes of criticism and commentary because, by pairing Lennon’s “secular utopian vision” with “Cold War-era images,” the filmmakers “eriticize[d] what [they saw] as the naiveté of John Lennon’s views.” Id. at 323-24.
Catfish is even more transforma-tive than Expelled, which used the copyrighted song and its lyrics to convey the song’s original message — albeit in a critical manner. In contrast, Catfish uses Ku-ney’s song as a plot device — in an entirely different story — to identify (or, more accurately, misidentify and then clarify) the song’s author.
Another district court found fair use when several network television stations broadcast clips of the movie G.I. Joe as part of their obituary segments on one of the actors, Robert Mitchum. Video-Cinema Films, Inc. v. CNN, Inc., No. 98 CIV. 7128(BSJ),
Here too, Defendants recorded and published clips of Kuney’s song not to retransmit its message in a different medium, but because the song played an integral role in the plot of an unfolding story about the reality and unreality of online relationships. Both the obituaries in Video-Cinema Films and the scene at issue in Catfish are, in a superficial sense, designed to “entertain.” Crucially, however, they do not entertain in the same way as G.I. Joe or “All Downhill from Here,” respectively. For that reason, they are transformative.
Plaintiff argues that “Defendants could have used an alternative story-telling device to reveal that Angela was lying without gratuitously playing the Song over and over again.” (Opp’n at 17.) This statement is wrong on two points. First, “All Downhill from Here” was not repeated “gratuitously,” as discussed in Part C, below. As for the use of Kuney’s rather than some other song, it is undisputed that the filmmakers had no choice in the matter. The uncontroverted evidence shows that the filmmakers were documenting the real-life relationship between Yaniv and Angela. Although Plaintiff disputes that the filmmakers were chronicling real-life events in certain respects (see Opp’n at 3 (‘Whether the story in the film is real or fake remains disputed.”)), Plaintiff ultimately fails to present evidence showing that Yaniv, Ariel, and Henry had any control over which songs Angela chose to send to Yaniv.
For example, Plaintiff points out that Catfish was marketed as a “reality thriller” rather than a “documentary” and that “[p]ublic controversy about the authenticity of the film has been widespread.” (Id.) Setting aside the fact that the label “reality thriller” plainly suggests that the film is a thrilling depiction of reality, how Defendants chose to label their film is not dis-positive as to how it should be characterized. See Campbell,
Plaintiffs contention that Yaniv was engaged in an off-camera relationship with another woman while pretending to flirt with Megan on camera is similarly irrelevant. Even if true, the fact that Yaniv may have been faking his attraction to Megan so that the filmmakers could take advantage of the “undeniably exploitive implications of their stumbled-upon story” shows only that the film was “slipshod in its adherence to basic ethical norms.” A.O. Scott, The World Where You Aren’t What You Post, N.Y. Times, Sept. 17, 2010, at Cl. In fact, the evidence Plaintiff submits in support of its contention about Yaniv’s off-camera relationship confirms Defendants’ version of events in the only critical respect: that Yaniv did not realize before the scene at issue that Angela had copied the songs from somewhere else and was genuinely surprised to find out the truth. In other words, Defendants’ only
2. Commercial Use
Another consideration in evaluating the purpose and character of the use is that Catfish was a commercial rather than nonprofit endeavor. See 17 U.S.C. § 107(1); Campbell,
B. 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,
C. 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,
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,
The filmmakers used no more of Ku-ney’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 fhe 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.
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.
D. 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,
Instead, Plaintiff maintains that Catfish impaired the market for synchronization licenses to “All Downhill from Here.”
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.
To the extent some exogenous factor suppressed the demand to synchronize Ku-ney’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
E. 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. Idost 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,
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 Plaintiffs copyright infringement claims arising from the commercial version of Catfish.
IT IS SO ORDERED.
Notes
. The fifth allegation of unauthorized use in the complaint is not at issue in this motion because the commercial version of the film does not feature Plaintiff’s work during the film’s closing credits, as did the version screened at Sundance. Unless otherwise specified, references to Catfish denote the commercial version of the film.
. Fair use is Defendants’ only affirmative defense. (See Defs.’ Answers [Doc. ## 13-16].)
. The introductory verse of the song before leading into the chorus has the following lyrics: “Can’t pull myself out of the bed, / it's 12 o'clock inside my head / the people outside feel so far away. / I have a headache in my chest, / from all the chaos that you left. / Caffeine and aspirin take me away.” The chorus lyrics are as follow: "You tipped my world up on its side, / but it’s all downhill from here. / Mountaintops, level like parking lots / 'cause it’s all downhill from here. / Down down down .... ["down” repeated twelve more times]” (Opp’n, Ex. 8, "Studio Version All Downhill from Here.")
. Yaniv appears to be using Songza, a "music search engine and Internet jukebox” that was highly popular at the time. Brad Stone, Free Music Site Has a New Riff, N.Y. Times, Sept. 8, 2008, at C5.
. It is clear from context that he uses "sick” in the'sense of "crazy, cool, insane,” or "awesome.” Urban Dictionary, http://www.urban dictionary.com/define.php?term=sick (last visited Jan. 19, 2013).
. Most often, Comment for the purpose of correcting inaccuracies involves "an individual ,.. rebutting a copyrighted work containing derogatory information about himself.” Hustler Magazine Inc. v. Moral Majority Inc.,
. This difference is somewhat analogous to the difference in trademark law between classic and nominative fair use. See Fortune Dynamic, Inc. v. Victoria's Secret Stores Brand Mgmt., Inc.,
. For this reason, Plaintiff's contention that market harm can be presumed from Catfish’s commercial nature (Opp'n at 23) is flawed because Catfish does not commercially compete with “All Downhill from Here.” To the extent the language in Elvis Presley Enterprises, Inc. v. Passport Video suggests otherwise,
. For example, iTunes currently allows users — whether potential customers or not— to stream 90 seconds of the Studio Recording (containing the end of the introductory verse, the entire chorus, and most of the' second verse) for free on demand. See https://itunes. apple.com/us/album/all-downhill-from-here-feat./id280354066 (last visited Jan. 18, 2013).
. In general, it is necessary to obtain a “synchronization license” to include a musical composition that is not in the public domain in an audiovisual work. See Leadsinger, Inc. v. BMG Music Publ’g,
.There are likely factors other than memory that influence synchronization demand over time. For example, the creators of audiovisual works may have a preference for songs that have been recently released.
. The conclusory statements to the contrary by Plaintiffs expert (see Barker Depo. at 155:7-14) fail to explain how the song’s exposure in Catfish causally impacted its synchronization market adversely.
. Whether or not Defendants first attempted to gain Plaintiff’s permission to use "All Downhill from Here” is irrelevant. "If the use is otherwise fair, then no permission need be sought or granted.” Campbell,