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Equals Three, LLC v. Jukin Media, Inc.
Kathy Polishuk, Kelsey Lynn Schulz, Thomas H. Vidal, Abrams Garfinkel Margolis and Bergson LLP, Los Angeles, CA, for Plaintiff.
Melissa Caren Rose McLaughlin, Tamany Vinson Bentz, Venable LLP, Los Angeles, CA, for Defendants.
ORDER GRANTING IN PART AND DENYING IN PART JUKIN MEDIA, INC.'S MOTION FOR PARTIAL SUMMARY JUDGMENT AND JUDGMENT [34]
This copyright action centering around funny videos presents issues that are anything but simple. The instant motion requires the Court to evaluate whether a humorist's use of "viral videos"1 is a fair use. This complicated inquiry requires this Court to make distinctions along the fuzzy boundaries between commenting on humorous videos in a transformative manner and simply exploiting them for their inherent humor without paying the customary price.
On November 21, 2014, plaintiff and counterclaim defendant Equals Three, LLC ("Equals Three") sued defendant and counterclaimant Jukin Media, Inc. ("Jukin") for a declaratory judgment and for relief under § 512(f) of the Digital Millennium Copyright Act ("DMCA") (). Jukin counterclaimed, asserting that Equals Three infringes nineteen of its copyrights. Presently before the Court is Jukin's motion for partial summary judgment regarding fair use. (Dkt.34.). For the reasons discussed below, the Court GRANTS IN PART and DENIES IN PART Jukin's motion for summary judgment.
Jukin is a digital media company that amasses a library of user-generated internet video clips to license on the clip creators' behalf. (Def.'s SUF ¶¶ 1–2, 4, 12.) Jukin employs a research and acquisitions team of eleven people to scour the internet for videos likely to "go viral"—become sensationally popular. (Def.'s SUF ¶¶ 13–18.) Jukin's employees then locate the videos' creators and enter licensing agreements with them.3 (Def.'s SUF ¶ 19–24.) Jukin has a library of over 17,000 short-form videos. (Def.'s SUF ¶ 4.)
Jukin uploads these videos to its YouTube multi-channel network and to Jukin's own content-focused websites. (Def.'s SUF ¶¶ 5, 8.) Jukin also uses these videos to create "digital productions," which Jukin distributes on its YouTube multi-channel network and websites. (Smith Decl. ¶ 7.) Beyond arguing that these productions are original, Jukin does not offer evidence regarding the precise nature and content of these "digital productions." Jukin also monetizes its videos via ad-supported or subscription-based third-party syndicators, which take responsibility for content distribution and use Jukin's videos to generate advertising revenue. (Def.'s SUF ¶ 9.) Media partners also pay to sponsor a particular compilation of Jukin's videos. (Def.'s SUF ¶ 10.) Finally, Jukin promotes its videos to and licenses them for use on traditional media platforms, such as television and cable shows. (Def.'s SUF ¶ 146.) Jukin's partners include "the what da faq show" and "The Young Turks"—which Jukin describes as YouTube shows that are similar to Equals Three's show. (Def.'s SUF ¶ 152.)
Equals Three does not dispute the fact that Jukin's partner's include these two shows, but argues that the shows are distinct from Equals Three's show. In support of this argument, Equals Three offers the declaration of its executive producer Kadiatou Martin ("Martin"). Martin states that: (1) "The Young Turks" is distinguishable from Equals Three because "it is a politically-charged news and current events show"; and (2) "the what da faq show" is distinguishable from Equals Three because it "is in Spanish, it plays viral videos one after another in no particular arrangement, and the host offers few remarks." (Martin Decl. ¶ 9.)
Equals Three produces short humor programs which it broadcasts via YouTube. (Def.'s SUF ¶ 30, 32.) Its humor programs typically involve a host who gives an introduction, shows parts of video clips4 (which are usually shown in edited form and inset within a decorative graphical frame) and remarks about the events and people presented in the clip. (Martin Decl., Ex. B.; Def.'s SUF ¶ 32; Pl.'s SUF ¶¶ 157, 162.) In each episode, "the host weaves an originally-crafted humorous story theme throughout the episode using multi-media content—text, graphics and animation, sound effects, voice overs, and video clips—to enhance and develop the story."5 (Pl.'s SUF ¶ 157.) Often portions of the viral video are shown more than once during a single Equals Three episode. (Def.'s SUF ¶ 34.) The "host will frequently offer an originally-authored monologue, and will provide spoken and performed commentary on the various video clips, including facial expressions, sarcastic remarks, derisive commentary, sexual innuendo, and social commentary directly targeting and referencing the people, events, and circumstances depicted in the Source Videos." (Pl.'s SUF ¶ 162.) Each program is roughly five minutes long and typically features three segments, each of which centers around a different video. (Def.'s SUF ¶ 32, Johnson Decl. ¶ 6–7; Landry Decl. ¶¶ 4–5.) Equals Three also offers its executive producer's declaration that "[s]tylistically, the E3 Episodes feature frequent jump cuts" and are "edited to appeal to ... fast-paced tastes[.]" (Martin Decl. ¶ 3.)
Equals Three typically obtains source footage for its show by scouring the Internet for source videos. (Pl.'s SUF ¶ 159.) Jukin argues that Equals Three directly targets its videos, but fails to offer any evidence beyond rank speculation proving this fact. See (Smith Decl. ¶ 47.) Equals Three provides its creator's declaration that Equals Three does not target Jukin. (Johnson Decl. ¶ 12.)
It is undisputed that Equals Three uses portions of Jukin's videos without paying a licensing fee.6 Each of the subject source clips from Jukin is a user-generated video featuring either a slapstick-style mishap, an animal in a humorous situation, or simply a cute video of an animal (such as a dachshund chasing a crab on the beach). (Ramas Decl., Ex. 1; Marti Decl., Ex. B.) Jukin asserts that Equals Three infringed on its videos as follows:
(Martin Decl. ¶ 13.) It is undisputed that each of the allegedly infringed Jukin videos was published before Equals Three's alleged use of that video. (Pl.'s SUF ¶ 159.)
On March 12, 2014, Equals Three's then-host Ray William Johnson announced that the Equals Three show would be going on hiatus to find a new host. (Johnson Decl. ¶ 14.) When Jukin heard that Equals Three was to resume its broadcasts, Jukin contacted Equals Three to inform Equals Three that any use of Jukin's videos would be considered infringing.7 (Def.'s SUF ¶ 35.) Jukin's letter indicates that Jukin is willing to negotiate a license agreement and indicates that Equals Three's willingness to link to and credit Jukin's content is not sufficient. It is undisputed that no license agreement resulted.
On July 16, 2014, Equals Three resumed broadcast and published its episode titled "The Resurrection" to YouTube. (Def.'s SUF ¶ 37.) It is undisputed that "The Resurrection" used Jukin's video "Black Bear Milk Bottle Rescue." (Def.'s SUF ¶ 44.)
On July 17, 2014, Equals Three responded to Jukin's July 9 letter. (Def.'s SUF ¶ 38.) On July 25, 2014, Jukin sent a letter to Equals Three's counsel with an attached invoice for Equals Three's use of Jukin's videos.8 (Def.'s SUF ¶¶ 39–40.) Jukin argues that Equals Three never responded to the July 25 letter, never paid the invoice, and never attempted to negotiate a license. (Def.'s SUF ¶ 41.)
Equals Three asserts that since May 1, 2014, Jukin has filed at least 41 copyright infringement claims with YouTube regarding Equals Three's episodes. Once such a claim is filed against an Equals Three episode, Equals Three can no longer earn advertising revenue from that episode. (Pl.'s SUF ¶ 168.) Additionally, once Jukin has filed a claim against the episode Jukin can place advertisements on the episode redirecting viewers to its own YouTube channel. (Pl.'s SUF ¶ 169.)
The parties agree that the fair use issue is ripe for adjudication and that this issue may be dispositive of the case. At the status conference held on February 9, 2015, the Court set a briefing schedule regarding the instant motion for summary judgment. (Dkt.29.)
Federal Rule of Civil Procedure 56 requires summary judgment for the moving party when the evidence, viewed in the light most favorable to the nonmoving party, shows that there is no genuine issue as to any material fact, and that the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a) ; Tarin v. County of Los Angeles, 123 F.3d 1259, 1263 (9th Cir.1997).
The moving party bears the initial burden of establishing the absence of a genuine issue of material fact. See Celotex Corp. v. Catrett, 477 U.S. 317, 323–24, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). On an issue for which the moving party does not have the burden of proof at trial, the moving party may satisfy this burden by " ‘showing’—that is, pointing out to the district court—that there is an absence of evidence to support the nonmoving party's case." Celotex, 477 U.S. at 325, 106 S.Ct. 2548. Once the moving party has met its initial burden, the nonmoving party must affirmatively present admissible evidence and identify specific facts sufficient to show a genuine issue for trial. See id. at 323–24, 106 S.Ct. 2548 ; Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). The nonmoving party must "do more than simply show that there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106...
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