CDAS Wins Fair Use Ruling Over Facebook Livestream Birth Video

In a ruling from the bench, CDAS client Coed Media Group, LLC (“CMG”) succeeded in securing the dismissal of a copyright infringement lawsuit over a news story reporting on a man who live-streamed the birth of his son on Facebook.  Plaintiff Kali Kanongataa accused CMG of infringing the copyright in his home movie when CMG posted a screen grab of a single frame of the 45-minute video on collegecandy.com (and its Pinterest page) to illustrate a story reporting on the newsworthy fact that Kanongataa streamed the video to world.  Judge Kaplan of the Southern District of New York, after full briefing and oral argument by the parties, ruled in open court that CMG’s use of the screen grab was both a “fair use” as commentary and criticism, as well as a “de minimis” use that was too small to constitute actionable copyright infringement.  The court concurred with CMG that the screen shot constituted approximately .012% of the entire video and was simply too miniscule to be considered “substantially similar” to the video as a whole.  The court also dismissed Kanongataa’s claim under the Digital Millennium Copyright Act which accused CMG of removing “copyright management information” from the video, agreeing with CMG that Kanongataa had failed to state a plausible claim that CMG had intended to conceal an infringement.  CMG was represented by Nancy E. Wolff and Scott J. Sholder, who argued the motion.