IN THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

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DAVID WEISS,
Plaintiff-Appellant,

Civil Action No.

809-5233-624

BUZZFEED, INC.,
Defendant-Appellee,
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On Appeal from the United States District Court

for the Northern District of California

_______________________
Record
_______________________

Juannell Riley
Lauren Roemke
Columbia Law School
Class of 2018
TABLE OF CONTENTS
TABLE OF AUTHORITIES

STIPULATIONS
1. The only issues to be decided on appeal are:
1. Did the District Court err in granting the defendants motion for summary judgment
with respect to the affirmative defense of fair use?

2. Did the district court err in granting the defendants motion for summary judgment
with respect to plaintiffs defamation claim, find that the plaintiff was a public figure and
the defendant did not act with actual malice?
2. David Weiss has a valid copyright in the series Game of Crowns, including the characters on
the show and the script.
3. Any suit regarding Joe Brush, Holly Clanton, or Marc Rubens is consolidated in a separate
action.
4. Parties waive all procedural challenges, including jurisdiction and venue.
5. Matthew Jackson is judgment proof and plaintiff David Weiss has waived all claims against
him.
6. The truth or falsity of the statements is not an issue for appeal.
7. The television show at the center of this case, Game of Crowns, should not be confused with
the independent television show, Game of Thrones. You should rely only on facts contained in
this record. Do not introduce facts from the outside world.
8. Joe Brush, Holly Clanton, and Marc Rubens should not be confused with any real life
politicians. You should only rely on facts contained in this record and do not introduce any
outside facts
9. Juannell Riley wrote Part One, and Lauren Roemke wrote Part Two.

STATEMENT OF THE JURISDICTION

1. The United States District Court for the Northern District of California had original federal
question jurisdiction over federal constitutional claims pursuant to 28 U.S.C. 1331.

Additionally, the District Court has supplemental jurisdiction over the Defamation Claim
pursuant to 28 U.S.C. 1367.
2. The Ninth Circuit Court of Appeals has jurisdiction of appeal from final decision of the United
States District Court for the Northern District of California under U.S.C. 1291.

STATUTORY PROVISIONS
17 U.S.C.A. 107. Limitations on exclusive rights: Fair use
Notwithstanding the provisions of sections 106 and 106A, the fair use of a copyrighted work,
including such use by reproduction in copies or phonorecords or by any other means specified by
that section, for purposes such as criticism, comment, news reporting, teaching (including
multiple copies for classroom use), scholarship, or research, is not an infringement of copyright.
In determining whether the use made of a work in any particular case is a fair use the factors to
be considered shall include(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.
Cal. Civ. Code 44. Defamation
Defamation is effected by either of the following: (a) Libel. (b) Slander.
Cal. Civ. Code 45a. Cal. Libel on its face; other actionable defamatory language
A libel which is defamatory of the plaintiff without the necessity of explanatory matter, such as
an inducement, innuendo or other extrinsic fact, is said to be a libel on its face. Defamatory
language not libelous on its face is not actionable unless the plaintiff alleges and proves that he
has suffered special damage as a proximate result thereof. Special damage is defined in Section
48a of this code.

QUESTIONS PRESENTED
1. Can a district court properly grant summary judgment on a copyright claim, under the fair use
exception, when the use in question was explicitly commercial?
2. Did the district court err in granting summary judgment for BuzzFeed with respect to David
Weisss defamation claim, finding that Weiss is an all-purpose public figure, and that Melanie
Capo's attempts to investigate information on behalf of BuzzFeed obtained from reputable
sources precluded a finding of actual malice?
STATEMENT OF THE CASE

BuzzFeed is a news and entertainment online media company. In early August, 2014, the
Marc Rubens campaign approached BuzzFeed with a commercial proposition. The Rubens
campaign wanted BuzzFeed to create a campaign advertisement, for which they would be
compensated. The ad was created by BuzzFeed and the Rubens Campaign paid BuzzFeed for the
service.
The ad features, per BuzzFeed's customer's request, attacks launched at other presidential
candidates, Holly Clanton and Joe Brush. To accomplish the attack the ad intended, and to
increase the popularity and appeal of their work, BuzzFeed relied heavily on a Game of Crowns
scene and script.
Game of Crowns is a television show, written and produced by David Weiss. Weiss has a
valid copyright in the Game of Crowns series, including all characters and all scripts . On August
25, 2014, a new Game of Crowns episode aired on network television, featuring a scene titled
You Take Your Orders and You Carry On. In this scene two characters from opposing political
families, Cersei Lannister and Ned Stark, verbally spar over establishing political power for their
respective families. It was this scene that BuzzFeed copied to complete their advertisement for
the Marc Rubens campaign.
On September 5, 2014, BuzzFeed released a video advertisement utilizing the characters
and script from the Game of Crowns episode that aired in August 2014. At the end of the
commercial, the tagline Made on Behalf of Marc Ruben for President: A New American
Century is displayed. The commercial, itself, is one-minute long, featuring the faces of

presidential candidates Holly Clanton and Joe Brush superimposed over the characters Cersei
Lannister and Ned Stark, respectively. The script from "You Take Your Orders And Carrying
On," the aforementioned Game of Crowns scene, was kept mostly intact, except a few words
were dubbed to make the dialogue more appropriate.
BuzzFeeds video was released only eleven days after the original airdate of the episode,
and quickly went viral. Indeed, many Game of Crowns viewers saw the BuzzFeed video before
they were able to see the original Game of Crowns episode, evidenced by comments on the
BuzzFeed video by Game of Crowns fans suggesting they had not yet seen the episode.
This case was first brought in the United States District Court for the Northern District of
California. The trial judge granted summary judgment for Buzzfeed on both issues; holding that
Buzzfeeds use of David Weiss copyrighted material, according to the balance of the four
statutory factors and court precedent, was a fair use within the meaning of the statute, and also
holding that Weiss was an all-purpose public figure and that Buzzfeedspecifically Melanie
Capodid not act maliciously, as a matter of law, in investigating and publishing the
aforementioned article because they used reputable sources.
The case was appealed to the United States Court of Appeals for the Ninth Circuit from
the granting of Summary Judgement and any and all other adverse rulings made against plaintiff
in District Court on September 8th, 2015.
SUMMARY OF THE ARGUMENT
The district court erred by granting summary judgment for Buzzfeed. 17 U.S.C.A. 107
is specifically aimed at protecting educational and other similar uses. See 17 U.S.C.A. 107,
preamble (listing the kinds of uses the law is meant to protect). Buzzfeeds taking of Weiss work

was a non-educational, commercial use. The Supreme Court has held that a commercial purpose
weighs against a presumption of fair use. See, e.g., Campbell v. Acuff-Rose Music Inc., 510
U.S.569, 578 (1994). But the commercial nature of a use is not dispositive of the question of fair
use. Id at 579. Though the text of 107(1) only distinguishes between educational and
commercial uses, the Court has understood this section of the statute to pose an additional
question: whether and to what extent the new work is transformative. Campbell at 579. By
transformative the court means to the extent to which the new work adds something new, with a
further purpose or different character, altering the first with new expression, meaning, or
message.
ARGUMENT
I.

Standard of Review

The standard of review for this case is de novo. Under a de novo standard of review, this
Court owes no deference to the district courts decisions of law. Barrientos v. Wells Fargo Bank,
N.A., 633 F.3d 1186, 1188 (9th Cir. 1011).

II.

Statutory Analysis
In United States copyright law, determining fair usage is a matter of applying the four

factor balancing test provided by 17 U.S.C.A. 107. According to that statute, one must
consider:
(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. 17
U.S.C.A. 107.

In applying the statutes four-prong test, it is important to recall that none of the
statutory factors are dispositive. As the court explains in Campbell v. Acuff-Rose
Music Inc., the statutory factors may not be treated in isolation, one from
another. All are to be explored, and the results weighed together, in light of the
purposes of copyright. At 578 (1994).
Moreover, a district court may only grant summary judgment when the
record is sufficient to evaluate each of the factors. Harper & Row, Publishers,
Inc. v. Nation Enterprises, 471 U.S. 539, 560 (1985). The district court erred in
granting summary judgment because the record is insufficient to complete such an
evaluation for every factor, and the factors that have sufficient support in the
record can reasonably be understood to weigh against a finding of fair use. In
other words, there are several materially disputed facts. These facts include the
extent to which the work was transformative, the importance of the commerciality
of the work, and the significance to be accorded the time between the airdate of
the episode and the airdate of the series.
A. The preamble and factor one suggest commercial uses have a
higher standard to meet to be considered fair uses.
But, before one applies the four factors in the statute, much can be gleaned
from the preamble of 107. There, Congress gives a list which, although likely
incomplete, provides a clear picture of the kinds of uses the statute is meant to
protect under the umbrella of fair use. The examples given include criticism,
comment, news reporting, teaching (including multiple copies for classroom use),
scholarship, or research. 17 U.S.C.A. 107. Importantly, this list does not

include any purely commercial usages, instead focusing on the kinds of uses
whereby one might analyze or generate discussion about the copyrighted material
or use the copyrighted material to forward the education of others. This would
seem to suggest that a commercial use of copyrighted material was at the very
least, not viewed as favorably by Congress as educational uses.
This suggestion is further bolstered by the fact that the first prong of the
test makes an explicit distinction between a use that is of a commercial nature
and a use for nonprofit educational purposes, urging one applying the test to
consider the difference in the two types of uses. ibid 107(1). Coupled with the
preamble, it becomes near undeniable that commercial uses should receive
harsher scrutiny from courts before being awarded fair use status.
Buzzfeeds use of the Game of Crowns scene You Take
Your Orders and You Carry On is a commercial use (R 6, While it
can be argued that the piece is meant to inform viewers about
politics, Buzzfeed was compensated for the project.
Compensation suggests profit, and thus it is not possible to
characterize Buzzfeeds use as nonprofit educational and the
statute only offers two schemas for understanding prong one.
Compelling inferences aside, courts applying prong one of the statute have
asked whether and to what extent the new work is transformative. Campbell,
510 U.S. at 580 (quoting Folsom v. Marsh at 348)(internal quotation omitted).
Buzzfeeds copying of the Game of Crowns scene was not very transformative.
Buzzfeed only swapped in new faces, keeping the script the same except where

continuity of their work would force them to change it. But what Buzzfeed did not
change at all was the visual layout of the scene, the dress of the characters, the
flow of conversation between the parties in the scene, and other similar elements.
This was done to enable Buzzfeed to capitalize off the familiarity and good faith
of Game of Crowns for commercial gain.
Buzzfeed may, however, contend their work was a parody. The Court has
held, with respect to parodies, Such works [lie] at the heart of the fair use
doctrine's guarantee of breathing space within the confines of copyright.
Campbell, 510 U.S. 579. On the few occasions pertinent courts have had to
articulate the standard for parodies that constitute fair use they have been fairly
consistent. See, e.g., Harper, 471 U.S. at 539; Fisher v. Dees, 794 F. 2d 432 (9th
Cir 1986). In Fisher, the court accepted the argument that a parody, to be
considered a fair use, must at least partly target the work in question...Otherwise,
there is no need to conjure up the original in the audience's mind and no
justification for borrowing from it. Id at 436. The court reaffirmed this standard in
Campbell, holding that the use of some elements of a prior author's composition
[is] to create a new one that, at least in part, comments on that author's works.
510 U.S. at 580.
Buzzfeeds work cannot rightly be considered a fair use parody because it
in no way comments on the show itself. Instead, the work only conjures the
imagery of the show to increase viewership to promote commercial ends. This is
an important point because, as the Court explained in Sony v. Universal Studios,
every commercial use of copyrighted material is presumptively an unfair

exploitation of the monopoly privilege that belongs to the owner of the

copyright. 464 U.S. 417, 451 (1984). This rule, however, has been abandoned for
songs. See Campbell, 510 U.S. at 576 (explaining the need for a case by case
analysis over bright-line rules). These things considered, it would seem the first
statutory factor should go against finding a ruling of fair use on Buzzfeeds
behalf.
B. The nature of the work produced by David Weiss should afford
it higher protection from copyright infringement.
The second prong of the statutory test, unlike the first, is an inquiry into
substance as opposed to motive. In Campbell, this factor was characterized as
calling for the 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. At 586.Game of Crowns
is a TV show. It is a for profit endeavor. It is hard to deny that copyright laws
exist, at least in part, to protect the interests of innovators in exploiting their ideas
for profit. This would suggest that a TV show would likely be the kind of work
near the core of intended copyright protection. Buzzfeeds work directly
undermines that intended purpose of copyright law.
In Stewart v. Abend, the court gives another standard for understanding the
second prong: [a] use is less likely to be deemed fair when the copyrighted work
is a creative product. 495 U.S. 207, 237 (1990). Unquestionably, Game of
Crowns, with its multitude of characters, complex dialogue, and impressive plot

structure is a very creative work. This further diminishes Buzzfeeds claim to

protection under fair use doctrine.
C. Buzzfeed appropriated too significant a scene, in direct
violation of fair use doctrine.
The third statutory factor is aimed at delineating the significance of the use
by looking at the amount and substantiality of the portion used. 17 U.S.C.A.
107(3). Here, Buzzfeed will likely contend that by only using a one minute
scene, they used a portion of the episode small enough for the use to be viewed
favorably in light of the statue. To the contrary, in Harper & Row Publishers, Inc,
the court asserted that the judgment that this taking was quantitatively
infinitesimal, does not dispose of the inquiry, however. An evaluation of
substantiality in qualitative terms is also required. 471 U.S. at 598 (referring to
use of 300 words of a much larger book.) The court went on to find that the
seemingly insubstantial use was not a fair use because it appropriated the heart
of the previous product. Id at 600.
Much the same, Buzzfeed took only a minute clip, but said one minute
clip is a dialogue between two important characters in the show which has
important implications for the rest of the show. Moreover, the continuity of a
Television show may require understanding most parts of the show as
indispensable to the whole, as each scene builds on the previous scenes and sets
up the scenes to come. Under this schema, it is easier to see how You Take Your
Orders and You Carry On could fairly be considered the heart of the episode
and thus Buzzfeeds appropriation would not be a fair use, especially since, unlike

in Harper & Row, the Buzzfeed use was not referential or commentarial with
respect to David Weisss original work, instead merely utilizing Weisss work to
generate more viewership to increase the value of their copied work to ultimately
increase their compensation for the endeavor.
D. Buzzfeeds video spoiled the episode for some viewers and the
burden is on Buzzfeed to show it did not have further detrimental
economic consequences.
The last statutory factor asks about the impact of the appropriation on the
potential market for or value of the copyrighted work. 17 U.S.C.A. 107(4).
Courts, attempting to give life to factor four have said If the defendant's work
adversely affects the value of any of the rights in the copyrighted work...the use is
not fair. Harper, Inc., 471 U.S. at 569.
Buzzfeeds video was seen by people who had not yet viewed the Game of
Crowns episode. These viewers constitute the potential market for David Weisss
work. Spoilers, as such premature revelations are called, may detract from ones
desire to watch a show as material elements of the plot are exposed out of context.
Indeed, comment/s on the Buzzfeed article suggest this at least some fans of the
show had this experience. Part of Buzzfeeds adverse effect could have been
mitigated with a spoiler alert, which would signal to viewers that the video might
contain spoiling information, but Buzzfeed included no such warning.
Further detrimental consequences of Buzzfeeds video on the Game of
Crowns episode is hard to know. Since, however, Buzzfeeds video is of a
commercial nature and was created for commercial purposes, the onus is on

Buzzfeed to rebut the presumption [that it is not a fair use] by convincing the
court that the parody does not unfairly diminish the economic value of the
original. Fisher, 794 F. 2d at 437. Essentially, Buzzfeed has to show that their
use does not [fulfill] the demand for the original or usurp demand. Id at 438
(internal italics omitted). Showing such, is a matter of fact, not law, and thus this
factor cannot be sufficiently evaluated given the information in the record only.
III.

Buzzfeeds video should not be considered a fair use within the

meaning of 107.
Buzzfeeds video utilizes core elements of David Weisss copyrighted
work. This use was not especially transformative, nor is it rightly called a parody.
Moreover, Game of Crowns is a very creative TV show, which prior jurisprudence
suggests makes it more likely to receive protection from unpermitted uses.
Buzzfeed produced the video for commercial purposes and was compensated. The
statute implies in multiple places that such a use is unlikely to be protected under
107. Though it is hard to glean the economic impact of Buzzfeeds video, it is
clear their infringement on Weisss copyright enabled them to gain economic
value by exploiting Weisss creativity, and therefore the obligation is on Buzzfeed
to show they did not adversely affect Weiss interest in the show and the shows
economic value. All the factors suggest the district court erred in its summary
judgment ruling that Buzzfeeds video was a fair use under 107, or, in the
alternative, that the record shows there are enough open questions of fact to make
summary judgment inappropriate.