Case 20-2007, Document 2, 06/24/2020, 2871814, Page1 of 14
`
`UNITED STATES DISTRICT COURT
`SOUTHERN DISTRICT OF NEW YORK
`
`TAMITA A. BROWN, GLEN S. CHAPMAN,
`and JASON T. CHAPMAN,
`Plaintiffs,
`
`– against –
`
`NETFLIX, INC., AMAZON.COM, INC., and
`APPLE INC.,
`
`Defendants.
`
`
`
`
`
`Ramos, D.J.:
`
`OPINION & ORDER
`19 Civ. 1507 (ER)
`
`
`
`Tamita Brown, Glen S. Chapman, and Jason T. Chapman (collectively, “Plaintiffs”) are
`
`musicians who created the song Fish Sticks n’ Tater Tots (the “Song). In 2017, a documentary
`
`film titled Burlesque: Heart of the Glitter Tribe (the “Film”) depicts a group of burlesque
`
`dancers in Portland, Oregon, one of whom incorporated the Song in a performance.
`
`Amazon.com, Inc. (“Amazon”), Netflix, Inc. (“Netflix”), and Apple Inc. (“Apple”) (collectively,
`
`“Defendants”) are corporations that provide, among other products, video streaming services.1
`
`The Film is available to view on Defendants’ platforms. Plaintiffs allege that the use of the Song
`
`in the Film was unauthorized, and bring suit against Defendants for willful copyright
`
`infringement. Before the Court is Defendants’ joint motion to dismiss the claims against Netflix
`
`and Apple, and for judgement on the pleadings for Amazon. Doc. 28. Because the Court finds
`
`the Film’s incorporation of the Song to be fair use, Defendants’ motion is GRANTED.
`
`
`1 Streaming is the method by which film and television programs are delivered to viewers through computers and
`other internet-enabled devices. Compl. ¶ 23–27, Doc. 5
`
`

`

`Case 20-2007, Document 2, 06/24/2020, 2871814, Page2 of 14
`
`I.
`
`BACKGROUND
`A. Factual Background
`
`Plaintiffs wrote, arranged, and recorded the Song in 2011. Compl. ¶ 15. he Song,
`
`created for children, describes a student’s journey from her classroom to her school cafeteria to
`
`eat fish sticks and tater tots for lunch. Defs.’ Mem. in Supp. of Mot. to Dismiss (“Mem. in
`
`Supp.”), Doc. 29 at 10; Decl. of Jay Ward Brown (“Brown Decl.”), Ex. A (“CD of the Song”),
`
`Doc. 30. hey were granted a U.S. Copyright Registration for the Song on May 1, 2012. Compl.
`
`¶ 16.
`
`On March 3, 2017, the Film was released on Defendants’ websites.2 Compl. ¶ 19. It
`
`chronicles the stories of a group of burlesque dancers in Portland, Oregon through interviews,
`
`backstage preparations, and on-stage performances. Mem. in Supp. at 2; Brown Decl., Ex. B
`
`(“DVD Copy of Film”). In one scene, a dancer, who goes by the stage name Babs Jamboree,
`
`performs an act in a food-themed show centered on the concept of a “reverse mermaid,” which,
`
`in her telling, is a creature with the head of a fish and the legs of a woman. Mem. in Supp. at 3.
`
`During the performance, Jamboree steps behind a sign labeled “hot oil” and emerges, having
`
`removed her fish head and changed into brown leggings to appear as though she has been
`
`transformed into fish sticks. DVD Copy of Film at 27:47–30:34. During the performance, eight
`
`seconds of the Song plays, consisting of the lyrics “fish sticks n’ tater tots” sung by Brown a total
`
`of five times. DVD Copy of Film at 29:55–30:03. he performance continues for approximately
`
`20 more seconds with different songs in the background. DVD Copy of Film at 30:04–30:24.
`
`he Film is available on Defendants’ websites for customers to purchase, rent, or stream. Compl.
`
`¶¶22–27.
`
`
`2 he record is silent as to who created the Film or when.
`
`
`
`2
`
`

`

`Case 20-2007, Document 2, 06/24/2020, 2871814, Page3 of 14
`
`B. Procedural History
`
`Plaintiffs filed the instant action on February 20, 2019, accusing Defendants of directly
`
`infringing their right to publicly perform their work under 17 U.S.C. § 106(4); directly infringing
`
`their right to reproduce their copyrighted work under 17 U.S.C. § 106(1); and of contributory and
`
`vicarious copyright infringement, as well as inducement of copyright infringement, of their rights
`
`of reproduction and public performance under 17 U.S.C. §106 (1), (4). Compl. ¶¶ 37–79.
`
`Amazon filed an Answer on April 22, 2019. Netflix and Apple did not answer the Complaint.
`
`On November 13, 2019, Defendants jointly filed the instant motion to dismiss the claims against
`
`Netflix and Apple pursuant to Federal Rule of Civil Procedure 12(b)(6), and for judgement on the
`
`pleadings on the claims against Amazon pursuant to Rule 12(c). Mem. in Supp. 29.
`
`II.
`
`STANDARD OF REVIEW
`
`A. Rule 12(b)(6)
`
`“To survive a motion to dismiss, a complaint must contain sufficient factual matter,
`
`accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556
`
`U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A claim is
`
`facially plausible “when the plaintiff pleads factual content that allows the court to draw the
`
`reasonable inference that the defendant is liable for the misconduct alleged.” Id. (citing
`
`Twombly, 550 U.S. at 556). he plaintiff must allege sufficient facts to show “more than a sheer
`
`possibility that a defendant has acted unlawfully.” Id. (citing Twombly, 550 U.S. at 557).
`
`However, this “flexible ‘plausibility standard’” is not a heightened pleading standard, In re
`
`Elevator Antitrust Litig., 502 F.3d 47, 50 n.3 (2d Cir. 2007) (citation omitted), and “a complaint
`
`. . . does not need detailed factual allegations” to survive a motion to dismiss. Twombly, 550
`
`U.S. at 555.
`
`
`
`3
`
`

`

`Case 20-2007, Document 2, 06/24/2020, 2871814, Page4 of 14
`
`he question on a motion to dismiss “is not whether a plaintiff will ultimately prevail but
`
`whether the claimant is entitled to offer evidence to support the claims.” Sikhs for Justice v.
`
`Nath, 893 F. Supp. 2d 598, 615 (S.D.N.Y. 2012) (quoting Villager Pond, Inc. v. Town of Darien,
`
`56 F.3d 375, 378 (2d Cir. 1995)). “[T]he purpose of Federal Rule of Civil Procedure 12(b)(6) is
`
`to test, in a streamlined fashion, the formal sufficiency of the plaintiff’s statement of a claim for
`
`relief without resolving a contest regarding its substantive merits” or “weigh[ing] the evidence
`
`that might be offered to support it.” Halebian v. Berv, 644 F.3d 122, 130 (2d Cir. 2011) (internal
`
`citations and quotation marks omitted). Accordingly, when ruling on a motion to dismiss
`
`pursuant to Rule 12(b)(6), the Court accepts all factual allegations in the complaint as true and
`
`draws all reasonable inferences in the plaintiff’s favor. Nielsen v. Rabin, 746 F.3d 58, 62 (2d Cir.
`
`2014); see also Twombly, 550 U.S. at 556 (“[A] well-pleaded complaint may proceed even if it
`
`strikes a savvy judge that actual proof of those facts is improbable . . . .”). “For purposes of this
`
`rule, the complaint is deemed to include any written instrument attached to it as an exhibit or any
`
`statements or documents incorporated in it by reference.” Chambers v. Time Warner, Inc., 282
`
`F.3d 147, 152 (2d Cir. 2002) (internal quotation marks omitted).
`
`B. Rule 12(c)
`
` Rule 12(c) of the Federal Rules of Civil Procedure provides that “[a]fter the pleadings
`
`are closed — but early enough not to delay trial — a party may move for judgment on the
`
`pleadings.” Fed. R. Civ. P. 12(c). “he standard for granting a Rule 12(c) motion for judgment
`
`on the pleadings is identical to that [for granting] a Rule 12(b)(6) motion for failure to state a
`
`claim.” Lynch v. City of New York, 952 F.3d 67, 75 (2d Cir. 2020) (internal quotation marks
`
`omitted). Accordingly, a motion for judgment on the pleadings should be granted “if, from the
`
`pleadings, the moving party is entitled to judgment as a matter of law.” Burns Int'l Sec. Servs.,
`
`Inc. v. Int'l Union, United Plant Guard Workers of Am. (UPGWA) & Its Local 537, 47 F.3d 14, 16
`4
`
`
`

`

`Case 20-2007, Document 2, 06/24/2020, 2871814, Page5 of 14
`
`(2d Cir. 1995) (per curiam). he Court accepts as true the pleadings’ factual allegations and
`
`draws all reasonable inferences in the non-movant’s favor. Nielsen v. Rabin, 746 F.3d 58, 62 (2d
`
`Cir. 2014); see also Lombardo v. Dr. Seuss Enter., L.P., 279 F. Supp.3d 497, 505 (S.D.N.Y., 2017)
`
`(noting that in considering a motion for judgement on the pleading “all pleadings — including
`
`defendant's counterclaims — are taken to be true, subject to the same plausibility standard that
`
`applies on a Rule 12(b)(6) motion”).
`
`III. DISCUSSION
`
`Plaintiffs assert two claims of direct copyright infringement — by public performance
`
`under 17 U.S.C. § 106(4), and by reproduction under 17 U.S.C. § 106(1) — and three claims that
`
`are contingent upon direct copyright infringement — inducement of copyright infringement,
`
`contributory copyright infringement, and vicarious copyright infringement in violation of their
`
`public performance and reproduction rights. Defendants do not dispute the validity of Plaintiffs’
`
`copyright but argue that their use of the Song is fair use, which is a complete defense to direct
`
`copyright infringement and, as a result, to any claims that are contingent on the direct
`
`infringement. Plaintiffs, in turn, maintain that any fair use determination is premature at the
`
`motion to dismiss stage and that, moreover, Defendants’ use was not fair.
`
`he Court disagrees with Plaintiffs on both points and finds that Defendants’ use of the
`
`song was fair. As such, the Court GRANTS Netflix and Apple’s motion to dismiss pursuant to
`
`Rule 12(b)(6), as well as Amazon’s motion for judgment on the pleadings pursuant to Rule 12(c).
`
`A. Fair Use at the Motion to Dismiss Stage
`
`As an initial matter, Plaintiffs argue that the factual record is too premature to engage in a
`
`fair use inquiry, and accordingly, that the motion should be denied. Pls.’ Mem. in Opp’n of Mot.
`
`to Dismiss (Mem. in Opp’n), Doc. 32 at 2–3. Yet, Courts within this Circuit have consistently
`
`considered motions to dismiss and motions for judgement on the pleadings regarding copyright
`
`
`
`5
`
`

`

`Case 20-2007, Document 2, 06/24/2020, 2871814, Page6 of 14
`
`infringement claims. TCA Television Corp. v. McCollum, 839 F.3d 168, 178 (2d Cir. 2016)
`
`(“[T]his court has acknowledged the possibility of fair use being so clearly established by a
`
`complaint as to support dismissal of a copyright infringement claim.”); Kelly-Brown v. Winfrey,
`
`717 F.3d 295, 308 (2d Cir. 2013) (finding motion to dismiss appropriate where “where the facts
`
`necessary to establish the defense are evident on the face of the complaint.”); Lombardo, 279
`
`F. Supp. at 505. he Court will therefore proceed to the merits of the motion.
`
`B. Fair Use Defense to Direct Copyright Infringement
`
`Copyright owners are entitled to six exclusive rights under 17 U.S.C § 106, including the
`
`rights to “perform the copyrighted work publicly” and to “perform the copyrighted work publicly
`
`by means of a digital audio transmission.” 17 U.S.C § 106 (4), (6). In order to state a claim for
`
`infringement, “a plaintiff must allege both (1) ownership of a valid copyright and (2)
`
`infringement of the copyright by the defendant.” Spinelli v. Nat’l Football League, 903 F.3d
`
`185, 197 (2d Cir. 2018). However, “the fair use of a copyrighted work . . . is not an infringement
`
`of copyright.” 17 U.S.C § 107. he following factors are used to determine whether use is fair:
`
`(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. Consideration of each factor is “mandatory.” Fox News Network, LLC v. Tveyes, Inc., 883
`
`F.3d 169, 176 (2d Cir. 2018). he Court will therefore consider each of these factors in turn.
`
`
`
`6
`
`

`

`Case 20-2007, Document 2, 06/24/2020, 2871814, Page7 of 14
`
` Factor One: Purpose and Character
`
`he first statutory factor asks the Court to consider the “purpose and character” of the
`
`reproduced work, also known as the work’s “secondary use.” 17 U.S.C. § 107(1). At the core of
`
`this inquiry is whether the secondary use is transformative — understood as communicating a
`
`“further purpose or different character, altering the first with new expression, meaning or
`
`message.” Authors Guild, Inc. v. HathiTrust, 755 F.3d 87, 96 (2d Cir. 2014) (citing Campbell v.
`
`Acuff-Rose Music, Inc., 510 U.S. 569, 579 (U.S. 1994)). hus, a transformative work is “one
`
`that serves a new and different function from the original work and is not a substitute for it.” Id.
`
`at 96. he use of unaltered copyrighted material — also known as raw material — is not
`
`prohibited, and indeed, “raw material, transformed in the creation of new information, new
`
`aesthetics, new insights and understandings . . . is the very type of activity” contemplated by the
`
`fair use doctrine. Blanch v. Koons, 467 F.3d 244, 252 (2d Cir. 2006). he inquiry must also
`
`consider whether the copyrighted materials are for a commercial or nonprofit educational
`
`purpose, finding “the former tending to weigh against a finding of fair use.” TCA Television
`
`Corp., 839 F.3d at 183 (internal quotation marks omitted). Yet, a finding of commercial use is
`
`not dispositive, as “the more transformative the new work, the less significance of other factors,
`
`like commercialism.” Id.
`
`Plaintiffs argue that because the Song itself is “unaltered,” its use cannot be
`
`transformative, and that because the subject of both works is “fish sticks,” that the idea
`
`underlying the Song and the performance are “exactly the same.” Mem. in Opp’n at 5.
`
`Moreover, they also suggest that record is underdeveloped as to whether the Film is a
`
`documentary, and thereby has an educational purpose, or whether its purpose is purely
`
`commercial, thereby making a finding of fair use premature at the motion to dismiss stage. Id.
`
`at 3. Neither of these arguments is persuasive.
`7
`
`
`

`

`Case 20-2007, Document 2, 06/24/2020, 2871814, Page8 of 14
`
`Plaintiffs argue that “[w]hen there is no alteration from the original there can be no [fair]
`
`use.” Id. In support, they rely primarily on TCA Television Corp. v. McCollum; however, the
`
`facts of that case are inapposite. In TCA Television Corp. v. McCollum, the secondary use not
`
`only copied the raw material, but also duplicated “the comedic purpose of the original work,”
`
`understood to be its original meaning. 839 F.3d at 184. Here, while Defendants do not alter the
`
`Song and reference its concept of “fish sticks,” the performance serves a “new and different
`
`function” from the Song, rather than offering merely a substitute for its tale of a student on her
`
`way to lunch. HathiTrust, 755 F.3d at 96. Indeed, even Plaintiffs repeatedly note the differences
`
`in purpose and character between the performance and the Song: the Song was created “with
`
`children being the intended audience,” whereas the Film is “centered on strippers” and uses the
`
`Song “while a scantily clad woman . . . begins to perform a strip dance routine.” Compl. ¶¶ 17–
`
`18, 20; Mem. in Opp’n at 5. hese descriptions only confirm that Defendants’ use transforms the
`
`Song: Whereas the Song communicates a light-hearted children’s story about a student looking
`
`forward to lunch in the school cafeteria, the Film depicts decidedly mature themes that portray
`
`fish sticks not as a lunch food, but as a component of a “reverse mermaid.” CD of the Song;
`
`DVD Copy of Film at 27:47–30:34. hese are, undoubtedly, “new aesthetics.” Blanch, 467 F.3d
`
`at 252.
`
`As to whether or not the Film has a commercial purpose, Defendants argue that their
`
`status as a commercial entity is irrelevant because the Film is transformative and is a
`
`documentary, and accordingly, offers criticism or commentary. Mem. in Supp. 29 at 14.
`
`Regardless of Plaintiffs’ claim that the Film is not a documentary — in contradiction of the
`
`evidence available in the record plainly demonstrating its documentary nature — the commercial
`
`nature of a work nonetheless is not determinative of the first factor analysis. DVD Copy of Film;
`
`
`
`8
`
`

`

`Case 20-2007, Document 2, 06/24/2020, 2871814, Page9 of 14
`
`Campbell, 510 U.S. at 584 (noting that “nearly all of the illustrative uses listed in the preamble
`
`paragraph of § 107 . . . are generally conducted for profit” (internal quotations omitted)). Even if
`
`the Film were purely commercial, as Plaintiffs allege, because the secondary use is of a
`
`transformative nature, the first factor still weighs in favor of Defendants. See Cariou v. Prince,
`
`714 F.3d 694, 708 (2d Cir. 2013) (“Although there is no question that [Defendant’s] artworks are
`
`commercial, we do not place much significance on that fact due to the transformative nature of
`
`the work”).
`
`hus, the first factor weighs in favor of Defendants.
`
` Factor Two: Nature of the Copyrighted Work
`
`he second statutory factor considers the “nature of the copyrighted work.” 17 U.S.C
`
`§ 107(2). his factor “has rarely played a significant role in the determination of a fair use
`
`dispute.” Authors Guild v. Google, Inc., 804 F.3d 202, 220. Indeed, because this analysis
`
`“inevitably involves” the first factor’s transformative purpose inquiry, “the second factor may be
`
`of limited usefulness where the creative work of art is being used for a transformative purpose.”
`
`Id.; Blanch, 467 F.3d at 257.
`
`Plaintiffs argue that the Song is intended for creative expression for public dissemination
`
`and that this factor weighs in their favor because Defendants have not provided a persuasive
`
`justification for their use. Mem. in Opp’n at 10. Notwithstanding Plaintiffs’ characterization of
`
`the Song, the transformative nature of the Film renders the second factor “of limited usefulness.”
`
`Blanch, 467 F.3d at 257. And while Plaintiffs argue that Defendants have not provided an
`
`adequate justification for their use, such requirement is satisfied when the secondary use is found
`
`to be transformative. Google, Inc., 804 F.3d at 220 (finding the second factor “not dispositive”
`
`when the secondary use is transformative, even if “one (or all) of the plaintiff works were
`
`[creative]”); Fox News Network, LLC, 883 F.3d at 178 (finding that where the first statutory
`9
`
`
`

`

`Case 20-2007, Document 2, 06/24/2020, 2871814, Page10 of 14
`
`factor favors secondary use due to modest transformative use — “albeit slightly” — the second
`
`factor “plays no significant role”).
`
`Accordingly, the second factor is neutral.
`
` Factor ^ree: Amount and Substantiality
`
`he third statutory factor considers the “amount and substantiality of the portion used in
`
`relation to the copyrighted work as a whole.” 17 U.S.C § 107(3). he analysis is “with reference
`
`to the allegedly copyrighted work, not the infringing work.” Bill Graham Archives v. Dorling
`
`Kindersley Ltd., 448 F.3d 605, 613 (2d Cir. 2006). he factor “calls for thought not only about
`
`the quantity of the materials used, but about their quality and importance, too.” Campbell, 510
`
`U.S. at 587. he quantitative inquiry considers whether the secondary use “employs more of the
`
`copyrighted work than is necessary,” whereas the qualitative inquiry asks whether the use was
`
`“excessive in relation to any valid purposes asserted under the first factor.” HathiTrust, 755 F.3d
`
`at 96 (citing Campbell, 510 U.S. at 588 (1994)). If the use qualitatively amounts to “the heart”
`
`of the original work, although quantitatively minimal, the use could be considered substantial;
`
`however, use of “the heart” of the copyrighted work is not dispositive. Indeed, when the work is
`
`transformative, “the secondary use must be [permitted] to conjure up at least enough of the
`
`original to fulfill its transformative purpose.” Cariou, 714 F.3d at 710 (citing Campbell, 510
`
`U.S. at 588) (internal quotation marks omitted).
`
`Quantitatively, the Film uses eight seconds of the Song’s 190 seconds, or 4.21 percent of
`
`the Song. Mem. in Opp’n at 11; DVD Copy of Film at 29:55–30:03. Plaintiffs argue that
`
`because the segment used is repeated three times in the Song, that the total used is more
`
`accurately 12.63 percent of the Song. Mem. in Opp’n at 11. Yet Plaintiffs do not point to a
`
`single instance in which a copyrighted work’s repeated refrain was counted more than once for
`
`
`
`10
`
`

`

`Case 20-2007, Document 2, 06/24/2020, 2871814, Page11 of 14
`
`the quantitative assessment. Mem. in Opp’n at 11. his component, therefore, favors
`
`Defendants.
`
`Repetition can, however, be considered in the qualitative inquiry. Plaintiffs argue that the
`
`segment used in the Film represents the “heart” of the Song, noting that the cited passage is the
`
`chorus that gives the Song its name and is repeated throughout the Song. Mem. in Opp’n at 11.
`
`Even assuming that this segment is the “heart” of the Song, this does not end the analysis. See,
`
`Lennon v. Premise Media Corp., 556 F. Supp. 2d 310, 326 (S.D.N.Y 2008) (finding that the
`
`secondary use’s inclusion of a musical phrase used in 50 percent of the copyrighted material was
`
`not excessive, even though it contained the heart of the original material). Where the heart of the
`
`copyrighted work is at the core of the transformative character, use of the heart is permissible “to
`
`fulfill its transformative purpose.” Cariou, 714 F.3d at 710; see Lennon, 556 F. Supp. 2d at 326
`
`(finding it was “not clear that defendants could have used any portion of the song [to fulfill its
`
`transformational purpose] without ending up with an excerpt” at the copyrighted work’s heart).
`
`hus, use of the “heart” of a work is permissible when it is necessary to achieve its
`
`transformation. Such is the case with Defendants’ use — the dance depicted in the Film requires
`
`the phrase “fish sticks and tater tots” to communicate the “reverse mermaid” transformation.
`
`herefore, the third factor’s qualitative component also favors Defendants.
`
`Because the portion of the Song used by Defendants is neither quantitively nor
`
`qualitatively excessive, the third factor weighs in favor of a finding of fair use.
`
` Factor Four: Effect Upon the Potential Market or Value
`
`he fourth factor considers “the effect of the [secondary] use upon the potential market
`
`for or value of the copyrighted work.” 17 U.S.C. § 107(4). his factor is “undoubtedly the single
`
`most important element of fair use.” Harper & Row Publishers, Inc. v. Nation Enters., 471 U.S.
`
`539, 566, (1985). he critical inquiry is whether the secondary use “usurps” the market of the
`11
`
`
`

`

`Case 20-2007, Document 2, 06/24/2020, 2871814, Page12 of 14
`
`original, “where the infringer’s target audience and the nature of the infringing content is the
`
`same as the original.” Cariou, 714 F.3d at 709. In such instances, the secondary use competes
`
`with the original “so as to deprive the rights holder of significant revenues because of the
`
`likelihood that potential purchasers may opt to acquire the copy in preference to the original.”
`
`Google, Inc., 804 F.3d at 223. his likelihood is closely linked to the first factor, as “the more the
`
`copying is done to achieve a purpose that differs from the purpose of the original, the less likely
`
`it is that the copy will serve as a satisfactory substitute for the original.” Id. (citing Campbell,
`
`510 U.S. at 591). Critically, the fourth factor must also consider “‘not only the . . . market harm
`
`caused by the particular actions of the alleged infringer,’ but also the market harm that would
`
`result from ‘unrestricted and widespread conduct of the [same] sort.’” Fox News Network, LLC,
`
`883 F.3d at 179 (citing Campbell, 510 U.S. at 590).
`
`Here, the fourth factor weighs decisively in favor of Defendants. Plaintiffs repeatedly
`
`acknowledge that the Film targets a different audience from their own, noting that they “created
`
`the Song with children being the intended audience,” whereas the Film is “centered on strippers”
`
`and is used “during a scene in which a woman dances to the Song while removing her clothing.”
`
`Compl. ¶¶ 17–18, 20. As the Film’s use is transformative of the original, the potential market —
`
`children or those who would acquire the Song on behalf of children — would not “opt to acquire
`
`the copy” of a limited eight seconds of the Song “in preference to the original.” Google, Inc.,
`
`804 F.3d at 223 (finding that an online service deemed transformational, which allows users to
`
`view only “snippets” of books, did not create a competing substitute for the books). Put another
`
`way, it is unlikely that parents would purchase copies of the film for their minor children so that
`
`they could hear the excerpt of the Song in the Film.
`
`
`
`12
`
`

`

`Case 20-2007, Document 2, 06/24/2020, 2871814, Page13 of 14
`
`Plaintiffs also argue that if such use of the Song were to become widespread, that is,
`
`“without first obtaining a license from [them],” Plaintiffs would potentially be precluded “from
`
`participating in at least two entire segments of the music industry,” which they identify as “music
`
`for an individual to at least appear to dance to, and as background music” in films. Mem. in
`
`Opp’n at 13. Yet, “not every effect on potential licensing revenues enters the analysis under the
`
`fourth factor,” and a copyright holder “has no right to demand that users take a license unless the
`
`use that would be made is one that would otherwise infringe an exclusive right.” Fox News
`
`Network, LLC, 883 F.3d at 180 (internal quotation marks omitted). Moreover, only impacts on
`
`“potential licensing revenues for traditional, reasonable, or likely to be developed markets should
`
`be legally cognizable.” Id. Here, it is unreasonable to consider the potential uses named by
`
`Plaintiffs, which were unalleged in their complaint and only provided in response to Defendants’
`
`motion. Because Defendants met their burden by showing that the Film’s secondary use would
`
`not usurp that of the original, other similarly hypothetical uses would equally not deprive them of
`
`prospective audiences. hus, the fourth factor weighs in favor of Defendants.
`
`* * *
`
`Because the first, third, and fourth factors weigh in favor of Defendants, and the second
`
`factor is merely neutral, their alleged use of the Song is fair within the meaning of 17 U.S.C
`
`§ 107. Accordingly, Plaintiffs’ claims of direct copyright infringement by public performance
`
`and reproduction fail to meet the pleading standard required by Rules 12(b)(6) and 12(c). See
`
`Lynch, 952 F.3d at 75 (finding the “standard for granting a Rule 12(c) motion for judgment on
`
`the pleadings is identical to that [for granting] a Rule 12(b)(6) motion for failure to state a
`
`claim”).
`
`
`
`13
`
`

`

`Case 20-2007, Document 2, 06/24/2020, 2871814, Page14 of 14
`
`C. Contributory, Vicarious, and Inducement of Copyright Infringement
`
`Plaintiffs also assert claims for inducement of copyright infringement, contributory
`
`copyright infringement, and vicarious copyright infringement in violation of their exclusive
`
`rights of reproduction and public performance under 17 U.S.C. §106 (1), (4). Compl. ¶¶ 37–79.
`
`While the Copyright Act does not create liability for contributory, vicarious, or inducement of
`
`copyright infringement, “the common-law doctrine that one who knowingly participates or
`
`furthers a tortious act is jointly and severally liable with the prime [sic] tortfeasor.” Arista
`
`Records, LLC v. Doe 3, 604 F.3d 110, 117 (2d Cir. 2010). However, there can be no contributory,
`
`vicarious, or inducement of infringement where no direct infringement exists. Cariou, 714 F.3d
`
`at 712. Because Defendants have successfully invoked the doctrine of fair use, no underlying
`
`direct infringement exists. Fox News Network, LLC, 883 F.3d at 176 (finding fair use is an
`
`affirmative defense to copyright infringement). Accordingly, Plaintiffs’ claims for inducement of
`
`copyright infringement, contributory copyright infringement, and vicarious copyright
`
`infringement also fail to meet the requirements of both Rules 12(b)(6) and 12(c).
`
`IV. CONCLUSION
`
`For the reasons stated above, the Defendants’ motion to dismiss and for judgement on the
`
`pleadings is GRANTED with prejudice. he Clerk of Court is respectfully directed to terminate
`
`the motion, Doc. 28, and to close the case.
`
`It is SO ORDERED.
`
`Dated: May 27, 2020
`New York, New York
`
`
`
`14
`
`Edgardo Ramos, U.S.D.J.
`
`